Eric Wayne Lomax v. Police Chief of Erie

DLD-040 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-3319
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ERIC WAYNE LOMAX,
Appellant
v.
POLICE CHIEF OF ERIE;
OFFICER DACUS;
OFFICER DONALD D.;
CITY OF ERIE POLICE DEPT.
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On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 10-cv-00218)
District Judge: Honorable Sean J. McLaughlin
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Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
November 10, 2011
Before: AMBRO, JORDAN and VANASKIE, Circuit Judges
(Opinion filed: November 22, 2011)
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OPINION
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PER CURIAM
Eric Wayne Lomax appeals pro se from the District Court’s order granting Defendants’
motion to dismiss. Because no substantial question is presented by this appeal, we will
summarily affirm the order of the District Court.
I. Background
In September 2010, Lomax filed a civil action pursuant to 42 U.S.C. § 1983 in the
District Court against the Erie Police Chief, Officer Dacus, Officer Donald D., and the
Erie Police Department. He alleged false arrest and false imprisonment in violation of
the Fourth, Eighth, and Fourteenth Amendments, arising from his arrest on July 5, 2007.
Lomax claimed that on July 5, 2007, he was visiting a friend’s house in Erie,
Pennsylvania, where police officers “broke in[to] the house,” pointed weapons at him and
his friends, and yelled at them to surrender drugs. Lomax asserted that the police officers
then attempted to plant drugs on him, and he was charged with possession of a controlled
substance and related charges. A jury acquitted Lomax of the criminal charges on April
11, 2008.
In response to Lomax’s complaint, defendants filed a motion to dismiss, arguing
that Lomax’s claims were time-barred. The District Court granted defendants’ motion to
dismiss. Lomax timely appealed.
II. Discussion
We have jurisdiction under 28 U.S.C. § 1291, and our review of an order granting
a motion to dismiss is plenary. Phillips v. Cnty. of Allegheny, 515 F.3d 224, 230 (3d Cir.
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2008). “The statute of limitations for a § 1983 claim arising in Pennsylvania is two
years.” Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009). The alleged constitutional
violations that Lomax incurred occurred between July 5, 2007, the date of his arrest, and
April 17, 2008, when the charges brought against him in Erie County were dismissed.
See Wallace v. Kato, 549 U.S. 384, 389-90 (2007). Thus, Lomax’s civil rights action,
filed in September 2010, was filed beyond the two-year statute of limitations period, and
is time-barred.
Lomax argued that he was entitled to equitable tolling. State law generally
governs tolling principles. See Dique v. N.J. State Police, 603 F.3d 181, 185 (3d Cir.
2010). In Pennsylvania, the statute of limitations may be tolled by the discovery rule or
the fraudulent concealment doctrine. See Mest v. Cabot Corp., 449 F.3d 502, 510, 516
(3d Cir. 2006). The discovery rule tolls the statute of limitations when an injury or its
cause was not known or reasonably knowable “despite the exercise of due diligence.” Id.
at 510 (quoting Pocono Int’l Raceway v. Pocono Produce, Inc., 468 A.2d 468, 471 (Pa.
1983). To invoke the discovery rule, a plaintiff must “establish that he exhibited those
qualities of attention, knowledge, intelligence and judgment which society requires of its
members for the protection of their own interests and the interests of others.” Kach, 589
F.3d at 642 (citation omitted). The fraudulent concealment doctrine tolls the statute of
limitations when “through fraud or concealment the defendant causes the plaintiff to relax
vigilance or deviate from the right of inquiry.” Mest, 449 F.3d at 516 (quoting Ciccarelli
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v. Carey Canadian Mines, Ltd., 757 F.2d 548, 556 (3d Cir. 1985)).
Lomax has not established that tolling is justified. Although Lomax contended
that he was “only recently made aware of the fact that his constitutional rights were
violated,” he has not demonstrated that he exercised due diligence. His argument that
trial counsel incorrectly informed him that he could not sue the City or police does not
invoke the discovery rule as lack of knowledge, mistake, or misunderstanding does not
toll the running of the statute of limitations. See Pocono, 468 A.2d at 471. Lomax’s
argument that the documents regarding his civil action were fraudulently concealed also
fails because Lomax argued that the Clerk of Court of the Erie County Court of Common
Pleas, not defendants, had denied him access to documents related to his case. See Mest,
449 F.3d at 516.
Accordingly, we will affirm the District Court’s judgment.
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