1

 IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ERIC J. LYONS, )

Plaintiff, )

)

)

v. ) C.A. No. 03-75 Erie

) District Judge McLaughlin

) Magistrate Judge Baxter

)

LT. JOSEPH EMERICK, et al., )

Defendants. )

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

I. RECOMMENDATION

It is respectfully recommended that:

a) the motion to dismiss filed by Defendant Wellsby [Document # 109] be

DISMISSED as moot in light of the statute of limitations analysis herein;

b) the motion for leave to file an amended complaint filed by Plaintiff

[Document # 111] be DENIED AS FUTILE;

c) the motion for summary judgment filed by Defendant Van Slyke

[Document # 113] be GRANTED; and

d) the motion for summary judgment filed by Defendants Emerick, Skindell,

McShane, DiBello and McLaughlin [Document # 117] be GRANTED.

This Court further recommends that the remainder of this action (i.e., the claims against

Defendant Wellsby) be dismissed pursuant to 28 U.S.C. § § 1915(e)(2), 1915A and 42 U.S.C. §

1997e(c) for Plaintiff’s failure to state a claim upon which relief may be granted.

By separate Order filed this day, Plaintiff’s motion to compel [Document #112] is denied

as Plaintiff’s discovery requests are not germane to the statute of limitations analysis. 

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1 Defendant Leopold has previously been dismissed from this lawsuit. 

2 Plaintiff was convicted of these crimes and is currently serving a lengthy term of

incarceration.

2

II. REPORT

A. Introduction

On March 11, 2003, Plaintiff, an inmate incarcerated within the State Correctional

system of Pennsylvania, filed the instant civil rights action. Named as Defendants are: Lt.

Joseph Emerick, Captain James Skindell, Detective G. McShane, Officer J. DeBello, and

Officer McLaughlin, all of the Erie Police Department (hereafter, “City Police Defendants”); 

Special Agent Shawn Van Slyke of the Federal Bureau of Investigation; Nurse Cathy Leopold 1

of St. Vincent Medical Center; and George Wellsby, owner of The Car Corner. Plaintiff alleges

that his constitutional rights were violated during a criminal investigation into the kidnaping,

rape and attempted murder of an eight-year-old girl.2

B. Relevant Procedural History

Defendant Van Slyke is represented by the U.S. Attorney’s Office and has filed a motion 

for summary judgment. Document # 113. Defendants Emerick, Skindell, McShane, DeBello,

and McLaughlin (hereinafter, “City Defendants”) are represented together by the City Solicitor’s

Office and have joined in Defendant Van Slyke’s motion for summary judgment. Document #

117. The remaining Defendant, George Wellsby, the owner of The Car Corner, is representing

himself and has filed a motion to dismiss. Document # 109.

C. Standards of Review

1. Pro Se Litigants

Pro se pleadings, “however inartfully pleaded,” must be held to “less stringent standards

than formal pleadings drafted by lawyers” and can only be dismissed for failure to state a claim

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if it appears “<beyond a doubt that the plaintiff can prove no set of facts in support of his claim

which would entitle him to relief.’” Haines v. Kerner, 404 U.S. 519, 520-521(1972), quoting

Conley v. Gibson, 355 U.S. 41, 45-46 (1957). If the court can reasonably read pleadings to state

a valid claim on which the litigant could prevail, it should do so despite failure to cite proper

legal authority, confusion of legal theories, poor syntax and sentence construction, or litigant’s

unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982). Under our

liberal pleading rules, during the initial stages of litigation, a district court should construe all

allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir.

1997). See, e.g., Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)(discussing Fed.R.Civ.P.

12(b)(6) standard); Markowitz v. Northeast Land Company, 906 F.2d 100, 103 (3d Cir.

1990)(same). Because Plaintiff is a pro se litigant, this Court will consider facts and make

inferences where it is appropriate. 

2. Federal Rule of Civil Procedure 56

Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be granted

if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law.” Rule 56(e) further provides that when

a motion for summary judgment is made and supported, “an adverse party may not rest upon the

mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by

affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is

a genuine issue for trial. If the adverse party does not so respond, summary judgment, if

appropriate, shall be entered against the adverse party.” Id. 

A district court may grant summary judgment for the defendant when the plaintiff has

failed to present any genuine issues of material fact. See Fed.R.Civ.P. 56(c); Krouse v.

American Sterilizer Co., 126 F.3d 494, 500 n.2 (3d Cir. 1997). The moving party has the initial

burden of proving to the district court the absence of evidence supporting the non-moving

party’s claims. Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Country Floors, Inc. v.

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Partnership Composed of Gepner and Ford, 930 F.2d 1056, 1061 (3d Cir. 1990). Further,

“[R]ule 56 enables a party contending that there is no genuine dispute as to a specific, essential

fact <to demand at least one sworn averment of that fact before the lengthy process of litigation

continues.’” Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990) quoting

Lujan v. National Wildlife Federation, 497 U.S. 871 (1990). 

The burden then shifts to the non-movant to come forward with specific facts showing a

genuine issue for trial. Matsushita Elec. Indus. Co. v Zenith Radio Corp., 475 U.S. 574 (1986);

Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-461 (3d Cir. 1989)(the nonmovant must present affirmative evidence - more than a scintilla but less than a preponderance -

which supports each element of his claim to defeat a properly presented motion for summary

judgment). The non-moving party must go beyond the pleadings and show specific facts by

affidavit or by information contained in the filed documents (i.e., depositions, answers to

interrogatories and admissions) to meet his burden of proving elements essential to his claim. 

Celotex, 477 U.S. at 322; Country Floors, 930 F.2d at 1061.

A material fact is a fact whose resolution will affect the outcome of the case under

applicable law. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248 (1986). Although the court

must resolve any doubts as to the existence of genuine issues of fact against the party moving for

summary judgment, Rule 56 “does not allow a party resisting the motion to rely merely upon

bare assertions, conclusory allegation or suspicions.” Firemen’s Ins. Co. of Newark, N.J. v.

DuFresne, 676 F.2d 965, 969 (3d Cir. 1982). Summary judgment is only precluded if the

dispute about a material fact is “genuine,” i.e., if the evidence is such that a reasonable jury

could return a verdict for the non-moving party. Anderson, 477 U.S. at 247-249. 

3. Failure to state a claim under the PLRA 

The Prison Litigation Reform Act provides that: 

(a) Screening - The court shall review, before docketing, if feasible or, in

any event, as soon as practicable after docketing, a complaint in a civil

action in which a prisoner seeks redress from a governmental entity or

officer or employee of a governmental entity. 

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3 Title 28 U.S.C. §1915(e)(2) provides: “Notwithstanding any filing fee, or any portion

thereof, that may have been paid, the court shall dismiss the case at any time if the court

determines that--(B) the action or appeal--(i) is frivolous or malicious; (ii) fails to state a claim

on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune

from such relief.”

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(b) Grounds for dismissal– On review, the court shall identify cognizable

claims or dismiss the complaint, or any portion of the complaint, if the

complaint– (1) is frivolous, malicious, or fails to state a claim upon which

relief may be granted; or (2) seeks monetary relief from a defendant who

is immune from such relief.

28 U.S.C.A. § 1915A. Under Section 1915A, not only is a court permitted to sua sponte dismiss

a complaint which fails to state a claim, but is required to do so. Nieves v. Dragovich, 1997 WL

698490, at *8 (E.D. Pa. 1997)(“Under provisions of the Prison Litigation Reform Act codified at 

28 U.S.C. §§ 1915A, 1915(e) and 42 U.S.C. § 1997e(c), the district courts are required, either

on the motion of a party or sua sponte, to dismiss any claims made by an inmate that are

frivolous or fail to state a claim upon which relief could be granted.”).

The PLRA also amended the statutory provisions with respect to actions brought by

prisoners who are proceeding in forma pauperis. See 28 U.S.C. §1915(e)(2)3. Under this

provision as well, not only is a court permitted to sua sponte dismiss a complaint which fails to

state a claim, but it is required to do so by mandatory language. See, e.g., Keener v.

Pennsylvania Bd. of Probation and Parole, 128 F.3d 143, 145 n.2 (3d Cir. 1997) (describing 28

U.S.C. § 1915(e)(2)(B) as “the PLRA provision mandating sua sponte dismissal of in forma

pauperis actions that are frivolous or fail to state a claim.”). In performing a court’s mandated

function of sua sponte reviewing a complaint under 28 U.S.C. § 1915(e) and under § 1915A to

determine if it fails to state a claim upon which relief can be granted, a federal district court

applies the same standard applied to motions to dismiss under Federal Rule of Civil Procedure

12(b)(6). See, e.g., Tucker v. Angelone, 954 F. Supp. 134, 135 (E.D. Va. 1977) (“Under 28

U.S.C. §§ 1915A, 1915(e) and 42 U.S.C. § 1997e(c) the courts are directed to dismiss any

claims made by inmates that ‘fail to state a claim upon which relief could be granted’”.).

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 This issue has previously been brought before this Court on a motion to dismiss. This

Court recommended that the motion to dismiss based on the statute of limitations defense be

granted. Document # 53. However, in the face of Objections by the Plaintiff claiming that he

could not have filed the complaint without the supporting in forma pauperis documentation,

Judge McLaughlin declined to adopt the Report and Recommendation, instead opining that

“given the undeveloped state of the record,” a dismissal based on the statute of limitations issue

would be premature at that time. Document # 57.

6

The court’s obligation to dismiss a complaint under the PLRA is not excused even after

the defendants have filed a motion to dismiss if it appears that the complaint fails to state a

claim based upon grounds not raised by the defendants in their motion to dismiss. See, e.g.,

Lopez v. Smith, 203 F.3d 1122, 1126 n.6 (9th Cir. 2000); Palay v. United States, 125 F.Supp.2d

855, 860 (N.D. Ill. 2000).

D. Statute of limitations 

Defendant Van Slyke argues that summary judgment should be granted in his favor

because Plaintiff did not file the instant complaint within the statute of limitations period.4 

Without preparing a separate brief, the City Defendants have joined in Defendant Van Slyke’s

motion.

 Statutes of limitations are not “simply technicalities,” but rather are “fundamental to a

well-ordered judicial system.” Board of Regents v. Tomanio, 446 U.S. 478, 487 (1980)

(“Although filing deadlines, like statutes of limitations, necessarily operate harshly and

arbitrarily with respect to individuals who fall just on the other side of the, if the concept of a

filing deadline is to have any content, the deadline must be enforced.”). The federal civil rights

laws do not contain a specific statute of limitations for § 1983 actions. However, it is well

established that the federal courts must look to the relevant state statute of limitations. Wilson

v. Garcia, 471 U.S. 74, 78 (1985). In Pennsylvania, the statute of limitations is two years from

the date of the alleged violation. See Urrutia v. Harrisburg County Police Dept., 91 F.3d 451

(3d Cir.(Pa.) 1996). 

The events complained of in the complaint occurred on February 21, 2001. Therefore, in

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 It is worth noting that the prison mailbox rule is not applicable in this case. See

Nichols v. Bowersox, 172 F.3d 1068, 1074 (8th Cir. 1999) (explaining “the ‘prison mailbox

rule’ which, as the name suggests, would establish the date of filing as the date on which the

prisoner puts the proverbial ‘letter’ in the proverbial ‘mailbox’--in other words, the date on

which he or she deposits the petition in the prison mail system.”); Longenette v. Krusing, 322

F.3d 758 (3d Cir. 2003). The prison mailbox rule would only apply in this case if the statute of

limitations expired between the time Plaintiff gave the complaint to prison officials for mailing

to the Clerk of Courts and the time the complaint was received by the Clerk of Courts. Houston

v. Lack, 487 U.S. 266, 275-76 (1988) (an inmate’s pleadings are deemed filed at the moment the

inmate delivers the documents to prison officials to be mailed) (emphasis added); Burns v.

Morton, 134 F.3d 109, 113 (3d Cir. 1998) (prison mailbox rule provides that “a pro se prisoner’s

habeas petition is deemed filed at the moment he delivers it to prison officials for mailing to the

district court.”) (emphasis added); Smith v. Evans, 853 F.2d 155, 156 (3d Cir. 1988)

(“[B]ecause we find that [Plaintiff’s] motion was out of time before he even gave the motion to

prison officials to mail and that prison delay in mailing [Plaintiff’s] motion was not therefore a

factor in [Plaintiff’s] making his motion out of time, we hold that [the prison mailbox rule as

enunciated in] the Supreme Court’s decision in Houston v. Lack, [] cannot apply to the facts of

this case.); Taylor v. Carroll, 2004 WL 1151552 (D. Del. 2004) (“Petition is deemed filed on the

date he delivers it to prison officials for mailing to the district court.”) (emphasis added);

GArrick v. Vaughn, 2003 WL 22331774, *3 (E.D. Pa. 2003) (“Delivery for mailing is what

counts for purposes of the prison mailbox rule.”) (emphasis added). Here Plaintiff admits that

he mailed the document after the statute of limitations had already expired. Document # 115,

Exhibit 2, Plaintiff’s Deposition, page 64-65.

7

order to be within the statute of limitations, the complaint should have been filed on or before

February 21, 2003. The complaint was received by the Clerk of Courts on March 5, 2003.

Plaintiff admits that he did not mail the complaint until February 25, 2003, after the

applicable statute of limitations had run. Document # 115, Exhibit 2, Plaintiff’s Deposition,

pages 64-65 and Exhibit 4, Interrogatories, page 16; see also Document # 47, page 9.5 Plaintiff

argues that he should be excused from the statute of limitations due to the negligence of prison

staff at SCI-Huntingdon in that they did not process his in forma pauperis forms in what he

considers a timely manner. In his Opposition Brief, Plaintiff argues that he could not mail his

complaint in a timely manner because 

1. Restrictions on the filing instructions explicitly provide that the in forma

pauperis forms accompany the complaint when filing if the $150.00 filing fee

was not paid; and 

2. Prison officials, being fully made aware that there was a deadline in which 

Plaintiff had to have the forms mailed out, had deliberately delayed the

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processing of the forms so that the deadline will not be met against the

defendants in this case.” 

Document # 125, page 5. See also Document # 47, page 9. In other words, Plaintiff seeks to

have this Court equitably toll the statute of limitations. 

The doctrine of equitable tolling “functions to stop the statute of limitations from

running where the claim's accrual date has already passed.” Ormsby v. Luzerne County Dept. of

Public Welfare Office of Human Services, 2005 WL 2184759, at * 1 (3d Cir. Sept. 12, 2005),

quoting Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir.1994). 

Equitable tolling is “proper only when the ‘principals of equity would make the rigid application

of a limitation period unfair.’” Brown v. Shannon, 322 F.3d 768, 773 (3d Cir. 2003), quoting

Miller v. New Jersey State Department of Corrections, 145 F.3d 616, 618 (3d Cir. 1998). The

plaintiff has the burden of establishing that the equitable tolling doctrine applies. Courtney v. La

Salle University, 124 F.3d 499, 505 (3d Cir.1997). 

To invoke equitable tolling, a plaintiff must show that he exercised reasonable diligence

in bringing his claims. New Castle County v. Halliburton NUS Corp., 111 F.3d 1116, 1126 (3d

Cir. 1997), quoting Oshiver, 38 F.3d at 1390. See also Robinson v. Dalton, 107 F.3d 1018,

1023 (3d Cir.1997) (“[R]unning throughout the equitable tolling cases is the obligation of the

plaintiff to exercise due diligence to preserve his ... claim.”). The Third Circuit has instructed

that there are three principal situations in which equitable tolling may be appropriate: 1) where

the defendant has actively misled the plaintiff regarding the cause of action; 2) where the

plaintiff is some extraordinary way has been prevented from asserting his rights; and 3)

where the plaintiff has timely asserted his rights mistakenly in the wrong forum. Oshiver, 38

F.3d at 1387 (emphasis added). 

The first and third theories of equitable tolling are inapplicable here because Plaintiff

does not allege that these Defendants actively misled him regarding his cause of action and

Plaintiff did not timely assert his rights in the wrong forum. Plaintiff argues that the second

Oshiver principal applies to the instant matter: 

Surely, in the present case, where prison officials had deliberately or

inadvertently hindered Plaintiff’s efforts to process and mail the in forma

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pauperis forms to the court in a timely manner by delaying their preparation and

holding onto them for four (4) days until long after the statute of limitations had

expired, his situation qualifies under the second of the three principals described

in Oshiver. The Plaintiff had to fully depend on prison officials to complete the

forms before the deadline. In spite of having been informed that the deadline was

forthcoming, officials had taken their sweet time completing them and returning

them back to Plaintiff in time for mailing.

Document # 125, at 17. 

Generally, federal courts “invoke the doctrine of equitable tolling only sparingly.” 

United States v. Midgley, 142 F.3d 616 (3d Cir. 1998). See Lake v. Arnold, 232 F.3d 360, 371

(3d Cir. 2000) (“[W]here a guardian conspires to deprive a mentally incompetent person of her

constitutional and civil rights, equitable tolling might be appropriate.”); Barren v. United States,

839 F.2d 987, 990-1 (3d Cir.1988) (decedent's mental retardation does not provide the court

with a basis for tolling the statute of limitations under the extraordinary circumstances prong).

In a case factually similar to the one at hand, a habeas petitioner argued that the statute of

limitations should be tolled because a short delay in obtaining the necessary in forma pauperis

documentation from prison officials caused him to file his petition outside the statute of

limitations. Garrick v. Vaughn, 2003 WL 22331774 (E.D. Pa. September 5, 2003). The district

court rejected petitioner’s arguments by pointing out that the in forma pauperis requirements are

“not an extraordinary circumstance” because “all prisoners who wish to have their federal [...]

filing fees waived need to complete such a form.” Id. at 3. The court explained that “routine

aspects of prison life such as lockdowns, lack of access to legal resources, and disturbances must

be taken into consideration by a prisoner in deciding when to file a federal petition because these

do not constitute extraordinary circumstances sufficient to equitably toll the statute of

limitations” and “hardships associated with prison conditions do not constitute the rare

circumstance under which equitable tolling is granted.” Id. at 4.

In the instant case, Plaintiff acknowledges that he did not complete the complaint form

until February 12, 2003, just days before the statute of limitations period was to run. In his

deposition testimony, when asked when he decided to file the lawsuit, Plaintiff answered that

“I decided to file it way before it was actually filed but I was doing other things. I was working

on my case at the time, my appeal. I realized that the deadline was coming near for me to file it,

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 It does not seem to this Court that prison officials took an inordinate amount of time to

process these forms.

7

 The statute of limitations analysis applies with equal force to Defendant Wellsby even

though he has not specifically raised such as a basis for the dismissal of this action. Therefore,

the complaint should be dismissed against Defendant Wellsby for failure to state a claim

pursuant to this Court’s authority under the Prison Litigation Reform Act. 

10

[...] February 12th is when I had prepared and completed it.” Document # 115, Exhibit 2, page

54; see also Document # 3, Complaint, signed and dated February 12, 2003. Plaintiff knew that

his constitutional rights were allegedly violated on February 22, 2001, yet he did nothing to

pursue his rights until February 12, 2003, over twenty-three months later. Plaintiff has not

exercised reasonable diligence in bringing his claims to court and therefore his request for

equitable tolling should be denied. Irwin v. Veterans Affairs, 498 U.S. 89, 96 (1990). Plaintiff

chose not to pursue his rights until the eleventh hour and he did so at his own peril.6 Summary

judgment should be granted in favor of all Defendants.7 

E. Futility of Amendment

In opposition to the motion to dismiss filed by Defendant George Wellsby, Plaintiff

moves for leave to file an amended complaint. Document # 111. Plaintiff should not be

allowed to amend his complaint against Defendant Wellsby as such an amendment would be

futile.

 Federal Rule of Civil Procedure 15(a) states that “leave [to amend] shall be freely given

when justice so requires.” Fed.R.Civ.P. 15(a). “In the absence of any apparent or declared

reason--such as undue delay, bad faith or dilatory motive on the part of the movant, repeated

failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing

party by virtue of allowance of the amendment, futility of amendment, etc.--the leave sought

should, as the rules require, be freely given.” Foman v. Davis, 371 U.S. 178, 182 (1962)

(interpreting Federal Rules of Civil Procedure). An amendment would be futile when the

complaint, as amended, would fail to state a claim upon which relief could be granted. In re

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NAHC, Inc. Securities Litigation, 306 F.3d 1314, 1332 (3d Cir. 2002).

The amending of the complaint will not overcome the time bar of the statute of

limitations. The motion to amend the complaint should be denied.

III. CONCLUSION

For the foregoing reasons, this Court respectfully recommends that:

a) the motion to dismiss filed by Defendant Wellsby [Document # 109] be

DISMISSED as moot in light of the statute of limitations analysis herein;

b) the motion for leave to file an amended complaint filed by Plaintiff

[Document # 111] be DENIED AS FUTILE;

c) the motion for summary judgment filed by Defendant Van Slyke

[Document # 113] be GRANTED; and

d) the motion for summary judgment filed by Defendants Emerick, Skindell,

McShane, DiBello and McLaughlin [Document # 117] be GRANTED.

This Court further recommends that the remainder of this action (i.e., the claims against

Defendant Wellsby) be dismissed pursuant to 28 U.S.C. § § 1915(e)(2), 1915A and 42 U.S.C. §

1997e(c) for Plaintiff’s failure to state a claim upon which relief may be granted.

By separate Order filed this day, Plaintiff’s motion to compel [Document #112] is denied

as Plaintiff’s discovery requests are not germane to the statute of limitations analysis herein. 

In accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Local

Rule 72.1.4 B, the parties are allowed ten (10) days from the date of service to file written

objections to this report. Any party opposing the objections shall have seven (7) days from the

date of service of objections to respond thereto. Failure to timely file objections may constitute a

waiver of any appellate rights. 

S/ Susan Paradise Baxter 

SUSAN PARADISE BAXTER

Chief United States Magistrate Judge

Dated: October 28, 2005

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