NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

______________ No. 18

- 2703

______________ MICHELLE C. RASCOE; RASCOE COURTS, INC., Appellants

v. NEIL CODY; GEORGE DREES; TOWNSHIP OF SUSQUEHANNA

______________ Appeal from the United States District Court for the Middle District of Pennsylvania ( D.C. No. 1

- 15

- cv - 00994 ) District Judge: Hon. Christopher C. Conner

______________ Submitted Under Third Circuit L

. A

. R

. 34.1(a)

March 18 , 2019

______________ Before: SHWARTZ, KRAUSE, and BIBAS , Circuit Judges

.

(Filed: March 26 , 2019 )

______________ OPINION 

______________ SHWARTZ, Circuit Judge

.

 This disposition is not an opinion of the full Court and , pursuant to I.O.P. 5.7 , does not constitute binding precedent.2

Plaintiff s Michelle Rascoe and Rascoe Courts (collectively, “Plaintiffs”) appeal the District Court’s orders dismissing their second and third amended complaint s . B ecause the Court correctly determined that Plaintiffs ’ claims were barred by the statute of limitatio ns and that equitable tolling was not warranted , we will affirm.
I 1
A
Mrs. Rascoe and her husband operate d Rascoe Courts, an adult personal care facility in Susquehanna Township , Pennsylvania

. I n February 2013, the Pennsylvania Department of Human Servi ces (“DHS”) issued Rascoe Courts a provisional license under which the facility was subject to period ic inspection for six months

. During an April 2013 inspection conducted by Defendant Neil Cody, Adult Residential Licensing Unit Regional Director for DH S , a fire alarm went off

. T he alarm was silenced but the strobe lights could not be deactivated

. The following day , Cody and Defendant George Drees , Township Fire Marshall, conducted separate inspections, and the strobe lights were still activated

. Thereafter, D rees reported the fire code violations to the county municipal court and , o n April 22, 2013, Plaintiffs received a letter from the Department of Public Welfare (“DPW”) revoking Rascoe Court s ’ license to operate due to health and safety violati ons pursuant to 62 Pa. Stat. Ann. § 1026(b)(4 ) and 55 Pa. Code

1 Because this appeal comes to us from an order granting a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss, we draw the background from the factual allegations contained in Plaintiffs’ complaint and attached exhibits, which we accept as true. See Hartig Drug Co. v. Senju Pharm. Co. , 836 F.3d 261, 268 (3d Cir. 2016 ). The orders on appeal involve both Plaintiffs’ s econd and t hird a mended c omplaints, and we use both for the factual background.3

§ 20.71(a)(2)

. 2 The letter further indicated that the “decision is final 11 days from the date of this letter, or if you decide to appeal, upon issuance of a decision by the Bureau of Hearing s and Appeals.” Dkt. No. 50

- 1 . Plaint iffs appealed on April 29, 2013, and Rascoe Courts continued to operate. In July 2013, Plaintiffs hired counsel to represent them in their administrative appeal, and Mrs. Rascoe gave him “all of the documentary m aterial that she had gather ed in preparation of her case

. ” JA 70

- 71. Plaintiffs allege that counsel advised them that they could not bring a law suit against the state or t ownship until the administrat iv e appeal was completed. Plaintiffs claim that they were u nable to communicate with counsel , terminated his services in December 2013 , and proceeded pro se before the Administrative Law Judge (“ALJ”) overseeing the appeal

. On May 29, 2014 , the ALJ recommended to DHS that the appeal be denied

. DH S adopted the recommendation, finalizing the license revocation

.

B On May 21, 2015, P laintiffs brought suit in the Middle District of Pennsylvania , asserting substantive and procedural due process violations under 42 U.S.C. § 198 3 against Cody, Drees, and Susquehanna Township

. Defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6). T he motions were referred to a Magistrate Judge , who found that : (1) Plaintiffs’ injury was the revocation of their license, and s o the

2 I nspection summaries were attached to the letter, detailing the violations at Rascoe Courts.4

statute of limitations accrued on April 29, 2013 when Plaintiffs appealed DPW’s April 22, 2013 decision to revoke the license , Rascoe v. Susquehanna Township , No. 1:15

- cv 00994, 2016 WL 8252572, at *4

- 5 (M.D. Pa. Nov. 22, 2016) ; and (2) equitable tol ling was not warranted because there were no extr aordinary “ circumstances ” and Plaintiffs
had not “diligently pursue d their rights as they waited nearly twelve months after ” DHS denied their license revocation appeal to file suit, i d. at *6. For these reasons , the Magistrate Judge recommended dismissing the se cond a mended c omplaint without leave to amend because Plaintiffs’ claims were time

- barred under the two

- year statute of limitations for § 1983 claims arising in Pennsylvania. Id. at *6

- 7. The Dis trict Court adopted the Magistrate Judge’s recommendation in part, dismissing the second amended complaint but providing Plaintiffs “ one final opportunity to amend their complaint to state facts in support of their equitable tolling argument

. ” Rascoe v. S usquehanna Township , No. 1:15

- cv - 994, 2017 WL 551925, at *1 (M.D. Pa. Feb. 10 , 2017)

. Plaintiffs filed a third amended complaint , which the Magistrate Judge recommended dismissing, again concluding that Plaintiffs’ claims were time

- barred , and that equitable tolling was not warranted because Plaintiffs offered no new facts that show the extraordinary circumstances and diligence necessary to trigger equitable tolling. Rascoe v. Susquehanna Township , No. 1:15

- cv - 0994, 2018 WL 3233361, at * 9 (M.D . Pa. Mar. 6, 2018 )

. The District Court adopted this recommendation and dismissed Plaintiffs’
third amended complaint with prejudice. Rascoe v. Susquehanna Township , No. 1:15

-

cv - 994, 2018 WL 3217628, at *1 (M.D. Pa. July 2, 2018). Plaintiffs appeal the orders dismissing these complaints

.5 II 3 We exercise plenary review of a district court’s order granting a motion to dismiss. Burtch v. Milberg Factors , Inc. , 662 F.3d 212, 220 (3d Cir. 2011). We must determine whether the complaint, construed “in the light most favorable to the plaintiff,”
Santomenno ex rel. John Hancock Trust v. John Hancock Life Ins. Co. , 768 F.3d 284, 290 (3d Cir. 2014) (internal quotation marks and citation omitted ), “contain[s] sufficient factual matter, accepted as true, to ‘sta te a claim to relief that is plausible on its face [,] ’” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)), “but we disregard rote recitals of the elements of a cause of action, legal conclusions, and mere conclusory statements,” James v. City of Wilkes

- Barre , 700 F.3d 675, 679 (3d Cir. 2012). In addition to the factual allegations in the complaint, w e
may consider “undisputedly authentic documents if the complainant’s claims are based upon these documents.” Mayer v. Belichick , 605 F.3d 223, 230 (3d Cir. 2010).
III Plaintiffs allege that Defendants deprived them of substantive an d procedural due
process in violation of § 1983. The statute of limitations for a § 1983 action is governed by the state law where the cause of action arose, and “[t]he statute of limitations for a § 1983 claim arising in Pennsylvania is two years.” Kach v. Hose , 589 F.3d 626, 634 (3d Cir. 2009) (citations omitted). Plaintiffs argue that their claims did not accrue until May 2014 , when the ALJ and DHS reached a final disposition on the appeal of the license

3 The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. § 1291.6

revocation, and in the alternative, the statute of limitations should be tolled for extraordinary circumstances

. A
We must first determine when the cause of action accrued and the statute of limitations began to run on Plaintiffs’ claims

. “Under federal law, a cause of action accrues, and the statute of limitations begins to run, when the plaintiff knew or should have known of the injury upon which its action is based[,]” id. (internal quotation marks and citations omitted), even if “the fu ll extent of the in jury is not then known or predictable,” i d. at 635 . This is “an objective inquiry” about what “a reasonable person should have known.” Id. at 634. An alleged failure to provide notice and opportunity to respond before deprivation accr ues immediately when the Plaintiff learns of the deprivation. Plaintiffs’ complaint shows that their procedural and substantive due process claims are predicated on Defendants’ pre - revocation inspections and Defendants’ alleged wrongful handling of the pre - revocation process . Specifically, Plaintiffs allege Defendants “ unlawfully den[ied] Rascoe Courts an opportunity to correct the building’s alleged violations in a timely fashion before recommending that the building’s license be
revoked ” and “ never pr ovided [Plaintiffs] with prior notice of the reasons for the revocation. ” JA 72 ; see JA 73 (describing “blatant ignorance of statutes providing Plaintiffs with right to correct the alleged violations in a timely manner before revocation of the license”)

. Plaintiffs also assert t hat Defendants disregarded “proper and lawful inspection and revocation procedures,” including by not providing Plaintiffs with a plan7

of correction or “an opportunity to be heard regarding the revocation

. ” JA 72, 73

. Because Plai ntiffs complain of conduct leading up to the license revocation, they were objectively aware of the consequence and injury from such conduct when they received the April 2013 letter revoking their license to operate

. See Gonzalez

- Alvarez v. Rivero

Cubano , 426 F.3d 422, 427 (1st Cir. 2005) (holding statute of limitations began to run on § 1983 action when the initial administrative ruling was issued)

. Plaintiffs also argue, citing 55 Pa

. Code § 2600.266 , that they were entitled to certain procedures follow ing a temporary revocation , which they argue w ould cause their claims to accrue after they received the letter

. Their complaint, however, is clear that the substance of their claims are based on predeprivation conduct. We must look to the language in the complaint when we review a motion to dismiss.
T he accrual date is also unaffected by Plaintiffs’ administrative appeal.
E xhaustion of state remedies is not required where an administrative process is remedial or designed to vindicate a wrong by the state

. O’Neill v. City of Philadelphia , 32 F.3d 785, 791 n.13 (3d Cir. 1994). Since Plaintiffs were not required to exhaust state remedies before filing this lawsu it, their pursuit of a n administrative remedy by appealing the revocation has no effect on the statute of limitations. See Kelly v. City of Chicago , 4 F.3d 509, 511

- 13 (7th Cir. 1993) (holding that § 1983 claim related to revocation of liquor license began to run when license was officially revoked and “the availability of a state appeals proce ss had no different effect on the accrual date”).8

Therefore , because Plaintiffs ’ § 1983 claims accrued in April 2013 and the statute of limitations expired in April 2015 , the claims in Plaintiffs’ May 2015 complaint are time

- barred.
B Having concluded that the District Court properly found that the statute of limitations began running when Rascoe Court s ’ license was revoked, we next consider whether equitable tolling is warranted. Equitable tolling applies “where the plaintiff has
been prevented from asserting her claim as a result of

. . . extraordinary circumstances.”
Kach , 589 F.3d at 643 (citation omitted)

. In addition, t o benefit from equitable tolling, a plaintiff must “exercise due diligence to preserve his or her claim.” Robi nson v. Dalton , 107 F.3d 1018, 1023 (3d Cir. 1997). Thus, e quitable tolling requires extraordinary circumstances and diligence in pursuing the claim . Plaintiffs have shown neither. First, Plaintiffs’ assertion s that their former attorney misled them by advising that they were required to exhaust state administrative remedies , abandoned them, and withheld their documentary evidence do not constitute extraordinary circumstances.

“ [A] ttorney error, miscalculation, inadequate research, or other mistakes have not been found to rise to the ‘extraordinary’ circumstances required for equitable tolling. ” Fahy v.
Horn , 24 0 F.3d 239, 244 (3d Cir. 2001). Although attorney misbehavior “that goes beyond garden variety neglect” can constitute extraordinary circum stances, such as where

a n attorney affirmatively lies about taking actions he never took, Seitzinger v. Reading Hosp. & Med. Ctr. , 1 65 F.3d 236, 241 (3d Cir. 1999), or abandons his client or makes many misstatements of law, Ross v. Varano , 712 F.3d 784, 803

- 04 (3d Cir. 201 3 ) , neither9

occurred here. Plaintiffs fired cou nsel over a year before the statute

- of

- limitations period elapsed . Moreover, counsel’s mistake about exhaustion is not the kind of legal error that constitutes an extraordinary circumstanc e. See Fahy , 240 F.3d at 244. Second , Plaintiffs d id not demonstrate the requisite diligence to preserve their
claim s . While P laintiffs diligently pursued their administrative appeal, including efforts to obtain continuance s and d iscovery , they demonstrated no diligence in pursuing their § 1983 claims. Furthermore, e ven if Plaintiffs delayed filing their complaint based on the inaccurate advice of their former attorney and their belief that they needed to exhaust their administrative appeal before pursuing their federal claims , Plaintiffs still waited nearly a year to file this litigation after DHS reached its final decision in May 2014

. C f

. Ross , 712 F.3d at 800 (“We have recognized that in some cases an attorney’s malfeasance, when combin ed with reasonable diligence on the part of the [plaintiff] in pursuit of his rights, may warrant equitable tolling of the statute of limitations.” (citations omitted)). Thus, Plaintiffs have not shown the diligence required to equitably toll the
statute of limitations. 4
III For the foregoing reasons , we will affirm.

4 Because the District Court properly dismissed Plaintiffs’ claims as time

- barred, we nee d not address the sufficiency of Plaintiffs’ pleadings. That said, i nsofar as Plaintiffs claim violations of their due process rights based on Defendants Cody and Dre e s’s testimony at the revocation hearings in January and March 2014 , Defendants Cody and Drees are entitled to immunity, such testimony cannot provide a basis for relief. See Rehberg v. Paul k , 566 U.S. 356, 366 (2012).