IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

__________________________________________ 

 ) 

GEORGE GILMORE, ) CIVIL ACTION

 Plaintiff, ) 

 ) NO. 02-4379

 v. ) 

 ) 

PHILADELPHIA POLICE OFFICER ) 

CHARLES LAYTON, et al., ) 

 Defendants ) 

__________________________________________ ) 

ORDER

AND NOW, this ____ day of ____________, 2004, upon consideration of the Motion to Dismiss 

filed on behalf of Defendants Detective Charles Layton and Police Officer Joseph Goodwin, and any

response thereto, it is hereby ORDERED that Defendants’ Motion is GRANTED. All claims against 

Defendants are DISMISSED with prejudice. 

 SO ORDERED: 

 __________________________________

 Giles, J. 

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Case 2:02-cv-04379-JG Document 11 Filed 02/17/2004 Page 1 of 6
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

__________________________________________ 

 ) 

GEORGE GILMORE, ) CIVIL ACTION

 Plaintiff, ) 

 ) NO. 02-4379

 v. ) 

 ) 

PHILADELPHIA POLICE OFFICER ) 

CHARLES LAYTON, et al., ) 

 Defendants ) 

__________________________________________ ) 

MOTION TO DISMISS PURSUANT TO 

FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6) 

Pursuant to Federal Rule of Civil Procedure 12(b)(6), Defendants Detective Charles Layton and 

Police Officer Joseph Goodwin hereby move this Court to dismiss with prejudice Plaintiff’s Complaint 

for failure to state a claim against Defendants. In support of this Motion, Defendants rely upon and 

incorporate by reference the Memorandum of Law filed contemporaneously herewith. 

 Respectfully submitted, 

 _________________________ 

Peter D. Han

Assistant City Solicitor 

City of Philadelphia Law Department 

1515 Arch Street, 14th Floor 

 Philadelphia, PA 19102-1595 

February 17, 2004 Attorney for Defendants 

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Case 2:02-cv-04379-JG Document 11 Filed 02/17/2004 Page 2 of 6
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

__________________________________________ 

 ) 

GEORGE GILMORE, ) CIVIL ACTION

 Plaintiff, ) 

 ) NO. 02-4379

 v. ) 

 ) 

PHILADELPHIA POLICE OFFICER ) 

CHARLES LAYTON, et al., ) 

 Defendants ) 

__________________________________________ ) 

MEMORANDUM OF LAW IN SUPPORT OF THE MOTION TO DISMISS 

OF DEFENDANTS DETECTIVE CHARLES LAYTON 

AND POLICE OFFICER JOSEPH GOODWIN

PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(B)(6) 

I. INTRODUCTION

Plaintiff, who is an incarcerated individual, alleges, inter alia, that Detective Charles Layton, 

Badge #9942, and Police Officer Joseph Goodwin, Badge #5643, violated his civil rights arising from his 

arrest on May 18, 2000. (See Pl.’s Compl., at 4, Exhibit A). 

However, a review of Plaintiff’s Complaint reveals that, because the statute of limitations has run 

on Plaintiff’s claims, Plaintiff has failed to state a claim upon which relief can be granted against 

Defendants.

II. FACTS

Plaintiff’s Complaint sets forth the following claims against Defendants.1

 Plaintiff alleges that on 

May 18, 2000, Defendants Detective Charles Layton and Police Officer Joseph Goodwin used excessive 

force in arresting Plaintiff. (Pl.’s Compl., at 4, Exhibit A). (Pl.’s Compl., at 4, Exhibit A). Plaintiff states 

that he suffered injuries because of the alleged use of excessive force, and required hospitalization. (Pl.’s

Compl., at 4, Exhibit A). 

 1

 Plaintiff utilized a form complaint for prisoners filing a 42 U.S.C. § 1983 claim. (See Pl.’s Compl., Exhibit A). 

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Case 2:02-cv-04379-JG Document 11 Filed 02/17/2004 Page 3 of 6
III. LEGAL STANDARD

When considering a defendant’s motion to dismiss under Federal Rule of Civil Procedure 

12(b)(6), this Court must take all allegations contained in the complaint as true and construe them in the 

light most favorable to the plaintiff. H. J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 250 (1989); 

Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3d Cir. 1989). However, a motion to dismiss for 

failure to state a claim shall be granted if it appears certain that the plaintiff can prove no set of facts in 

support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Doe 

v. Delie, 257 F.3d 309, 313 (3d Cir. 2001). 

In considering a motion to dismiss, a court may reference matters of public record. Churchill v. 

Star Enter., 183 F.3d 184, 190 n.5 (3d Cir. 1999) (citing Rose v. Bartle, 871 F.2d 331, 339 n.3 (3d Cir. 

1989)). Additionally, in ruling on a motion to dismiss on statute of limitations grounds, the Court must 

determine whether “the time alleged in the statement of a claim shows that the cause of action has not 

been brought within the statute of limitations.” Jordan v. Crandley, 1999 WL 718616 (E.D. Pa. 1999) 

(quoting City v. Bridgewater Township Police Dept., 892 F.2d 23, 25 (3d Cir. 1989)). Where the 

complaint facially shows noncompliance with the applicable statute of limitations, a motion to dismiss on 

these grounds should be granted. Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.1 

(3d Cir. 1994). 

IV. ARGUMENT

Plaintiff’s Claims Against Defendants Detective Charles Layton and Police Officer Joseph 

Goodwin are Barred by the Statute of Limitations 

42 U.S.C. § 1983, which provides a cause of action for vindication of federal rights, does not 

contain a statute of limitations provision; rather, federal courts refer to the general, residual statute of 

limitations for personal injury actions under state law. Lake v. Arnold, 232 F.3d 360, 368 (3d Cir. 2000). 

Thus, for a claim brought under Section 1983, federal courts use the limitation period for personal injury

under Pennsylvania law and apply a two year statute of limitations. Lake, 232 F.3d at 368-69; Sameric 

Corp. of Delaware, Inc. v. City of Philadelphia, 142 F.3d 582, 599 (3d Cir. 1998); Bougher v. Univ. of 

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Case 2:02-cv-04379-JG Document 11 Filed 02/17/2004 Page 4 of 6
Pittsburgh, 882 F.2d 74, 78 (3d Cir. 1989); see 42 Pa. Cons. Stat. Ann. § 5524 (setting forth two year 

statute of limitations for enumerated torts). 

Plaintiff states in his Complaint that the incident involving Defendants Detective Charles Layton 

and Police Officer Joseph Goodwin occurred on May 18, 2000, which would have given Plaintiff until

May 19, 2002 to file his Complaint within the applicable two year statute of limitations. (See Pl.’s 

Compl., at 4, Exhibit A). However, Plaintiff did not even attempt to file his Complaint until at the earliest 

June 27, 2002, the date on which he signed his Complaint, which is over a month and two years after the 

incident occurred. (Pl.’s Compl., at 4, Exhibit A).2

 Therefore, given that over two years has elapsed 

since the date of the incident and the filing of the instant claim, Plaintiff’s claims against Defendants 

Detective Charles Layton and Police Officer Joseph Goodwin are barred by the statute of limitations. 

V. CONCLUSION

Wherefore, Defendants respectfully request that this Honorable Court grant their Motion and 

dismiss Plaintiff’s claims against them with prejudice. 

 Respectfully submitted, 

 _________________________ 

Peter D. Han

Assistant City Solicitor 

City of Philadelphia Law Department 

1515 Arch Street, 14th Floor 

 Philadelphia, PA 19102-1595 

February 17, 2004 Attorney for Defendants 

 2

 Although the point is moot, it is not even clear whether this initial filing for leave to proceed in forma pauperis

tolled the statute of limitations, given that on July 8, 2002 this Court denied Plaintiff’s petition, and then later 

granted his petition on June 30, 2003. (See Docket Report, Exhibit B). 

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Case 2:02-cv-04379-JG Document 11 Filed 02/17/2004 Page 5 of 6
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA 

__________________________________________ 

 ) 

GEORGE GILMORE, ) CIVIL ACTION

 Plaintiff, ) 

 ) NO. 02-4379

 v. ) 

 ) 

PHILADELPHIA POLICE OFFICER ) 

CHARLES LAYTON, et al., ) 

 Defendants ) 

__________________________________________ ) 

CERTIFICATE OF SERVICE

I, Peter D. Han, do hereby certify that service of a true and correct copy of Defendants Detective 

Charles Layton’s and Police Officer Joseph Goodwin’s Motion to Dismiss has been served upon the 

following individuals by regular mail, on this date, February 17, 2004. 

TO: George Gilmore 

 P.P., EM-7340 

 SCI-Houtzdale 

P.O. Box 1000

Houtzdale, PA 16698-1000 

DATE: February 17, 2004 BY: _________________________ 

Peter D. Han

Assistant City Solicitor 

 Attorney for Defendants 

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