Polite v. Diehl

OPINION OF THE COURT

ADAMS, Circuit Judge.

The primary issue on appeal in this civil rights action is whether the district court, in granting the defendants’ motion for summary judgment, applied the correct statute of limitations.

I.

On the evening of August 17, 1969, an automobile operated by Polite, the plaintiff, struck the rear of a vehicle that had stopped at a “Stop” sign. The defendant Diehl, a McKeesport, Pennsylvania, policeman, arrived two or three minutes after the accident occurred. He transported Polite, his two children, and a girl who had been riding in the other car, to McKeesport Hospital. On Diehl’s instructions, Polite’s car was towed away by a private towing service.

Polite was placed under arrest at the hospital on charges of driving under the influence of liquor and disorderly conduct. Polite alleges that while he was held in custody at the police station the defendant policemen maliciously beat him and sprayed chemical mace in his eyes. Then, Polite claims, he was taken before a magistrate and forced to plead guilty to charges of disorderly conduct, resisting arrest, and failure to have a driver’s license and ownership card as required by Pennsylvania law. The following morning, after a hearing, Polite was bound over on the drunken driving charge.

Approximately 23 months after Polite’s arrest he filed a civil rights action against Diehl and Lofstrom. A little less than 24 months after the arrest¹ he filed another suit against Rendulic, Chancio, Hanna, Donet, Sokol and Lofs-trom, alleging the same violations of his civil rights raised in the first suit. All the defendants were McKeesport policemen. The two actions were consolidated in the district court.

The complaints both alleged that the defendant policemen, “acting in concert and under color of state law,” violated the Civil Rights Acts² in depriving Polite of due process of law and equal protection of the laws in that (1) “Plaintiff was detained and incarcerated without a warrant, probable cause, explanation of the charges, explanation of his rights or the opportunity to consult with counsel;” (2) “Plaintiff was subjected to verbal abuse and taunting [and] physical abuse by the defendants in that he was repeatedly beaten, kicked, punched and while imprisoned in a cell was subjected to the application of liquid chemical mace to the eyes, all of which caused serious and severe injuries to the plaintiff,” and “denied medical attention for the injuries received in the beatings administered by the defendants;” (3) “By the use of threats, intimidation and interrogation was forced by the defendants to plead guilty to the charges alleged;” and (4) “At the time of the collision the defendants, without explanation, unlawfully seized the plaintiff’s vehicle.”

The defendants denied the allegations in Polite’s complaints, and then filed a motion for summary judgment³ on the ground that Pennsylvania’s one-year statute of limitations for actions based on false arrest⁴ barred plaintiff’s suits. Polite, in reply, contended that the appropriate statute of limitations was Pennsylvania’s two-year statute pertaining to suits for personal injury.⁵

Following a hearing on defendants’ motion for summary judgment, the district court granted judgment in favor of the defendants in both actions. The district court construed Gagliardi v. Lynn,⁶ the leading case on the scope of Pennsylvania’s statute of limitations for false arrest actions, as holding that that statute “applies to the entire course of conduct in cases involving incarceration preceded by arrest, including any incidental assault and battery.”⁷ Applying the one-year false arrest statute of limitations to the entirety of Polite’s complaints, the district court granted defendants’ motions since more than a year had elapsed between the alleged violations of Polite’s rights and the filing of the actions. These appeals followed.

II.

Polite contends that the district court should have applied Pennsylvania’s two-year statute of limitations pertaining to personal injury actions instead of the one-year statute of limitations relating to actions for false arrest. Although Polite has not challenged the district court’s application of a single statute of limitations to the numerous claims raised in his complaints, we must determine whether the district court should have applied a separate statute to each cause of action.

The district court correctly applied the one-year statute of limitations to Polite’s allegations of an unlawful arrest, but it erred in holding that the one-year statute extended to the assault and battery, conversion and guilty plea aspects of his actions.

Since the Civil Rights Acts contain no statute of limitations, the limitation to be applied is that which would be applicable in the courts of the state in which the federal court is sitting had an action seeking similar relief been brought under state law. Henig v. Odorioso, 385 F.2d 491 (3d Cir. 1967), cert. denied 390 U.S. 1016, 88 S.Ct. 1269, 20 L.Ed.2d 166 (1968). Consequently, this Court has held that Pennsylvania’s one-year statute of limitations pertaining to suits for false arrest is applicable to federal civil rights actions for a false arrest allegedly committed in Pennsylvania. Hileman v. Knable, 391 F.2d 596 (3d Cir. 1968); Henig v. Odorioso, supra. Accordingly, the district court did not err in applying the bar of Pennsylvania’s one-year statute of limitations to the unlawful arrest aspect of Polite’s actions.

Gagliardi, supra, however, affords no support for the view, adopted by the district court, that the limitations statute applicable to actions for false arrest “applies to the entire course of conduct in cases involving incarceration preceded by arrest, including any incidental assault and battery.”⁸ (emphasis added) In Gagliardi, the only issue was whether the trial court erred in holding that the one-year false arrest statute barred an action for false imprisonment. The Pennsylvania Supreme Court, in affirming, stated that “confinement is inextricably intertwined with an unlawful arrest,” and “By the same token, if the false arrest involved only a touching and no confinement, and we were forced to choose between limitation statutes relating to false arrest and battery, we would opt for the former.” 446 Pa. at 150, 285 A.2d at 112. (emphasis supplied)

Putting aside the fact that the latter statement was dictum, the language quoted refers only to a “touching” or battery committed in accomplishing an arrest. The assault alleged here occurred not when the plaintiff was arrested at the hospital, but considerably later while he was being held in the police station. Therefore, since the alleged assault and battery was not “inextricably intertwined” with the alleged false arrest, plaintiff’s cause of action for assault and battery would not, under Pennsylvania law, be subsumed under the one-year statute applicable to suits for false arrest. Rather, if plaintiff had brought an analogous action in state court, that court would have applied Pennsylvania’s two-year personal injury statute to the assault and battery. The district court here, therefore, must do the same. Thomas v. Howard, 455 F.2d 228 (3d Cir. 1972).

III.

The district court dismissed plaintiff’s allegations of a coerced guilty plea and the illegal seizure of plaintiff’s automobile on the basis of the one-year false arrest statute of limitations. What has been said with regard to the assault and battery allegations demonstrates that the district court erred in doing so, since that alleged conduct was separable from the false arrest. The Pennsylvania statute of limitations applicable to state suits analogous to the allegation of the unlawful seizure of plaintiff’s automobile is the six-year statute for actions for the recovery of goods. The state cause of action most similar to plaintiff’s allegation of a guilty plea coerced by physical abuse is one for wrongful personal injury not resulting in death, to which a two-year statute is applicable.⁹ The trial court therefore erred in summarily disposing of these two causes of action on the basis of the one-year false arrest statute.

Both parties to this appeal contend that plaintiff’s entire complaint should be governed by a single limitations statute. Such a ruling, however, would be contrary to the holdings in Henig, supra, and Thomas, supra, that the district court must apply the same statute of limitations that a state court would apply in a- state action seeking similar relief. Moreover, applying a single statute would have an anamalous result, since joining a claim for unlawful arrest with one for “police brutality” would either extend the statute which would be applicable to the unlawful arrest or contract the statute that would be applicable to the brutality claim if plaintiff had raised only one of the claims or had raised them in separate actions.¹⁰

IV.

We note that the defendants filed a supplemental motion for summary judgment on the basis that the record contained no evidence to sustain plaintiff’s allegations of a coerced guilty plea or of an unlawful seizure of his automobile. Although the record in its present state may not contain sufficient averments to withstand such a motion, since there is no indication in the record that this motion was considered by or pressed in the district court and since the parties may wish to present additional facts when the question is squarely addressed, we leave that issue to be resolved upon remand.

Defendants’ motions for summary judgment did not specifically raise the question whether the alleged assault, as described in the depositions, constituted grounds for relief under section 1983, nor did the briefs on this appeal deal with the issue, except in a fleeting reference.¹¹ Consequently, it would appear premature to address it at this time.¹²

Accordingly, the judgment of the district court granting summary judgment for the defendants on the causes of action alleging false arrest will be affirmed, but the judgment on the causes of action alleging assault and battery, a coerced guilty plea and unlawful seizure of the automobile will be reversed, and the ease will be remanded to the district court for further proceedings consistent with this opinion.

1 . Polite was arrested on August 1-7, 1969. The first suit was filed on July 8, 1971; the second on August 11, 1971.

2 . Plaintiff’s complaints, which are identical in this respect, invoke 42 U.S.C. § 1983 (1974) in their jurisdictional statement only. Plaintiff’s causes of action are then formulated under 42 U.S.C. § 1981 (1974) and 42 U.S.C. § 1985 (1974). The district court, apparently giving the complaints a broad reading, disposed of both of them under section 1983. Polite v. Diehl, Civ. Nos. 71-637; 71-760 (W.D. Pa., July 7, 1972).

3 . Depositions had been taken of Diehl, Polite, the driver and passenger in the other car involved in the accident and the custodian of the records of the McKeesport Police Department. Polite had also filed an ophthalmologist’s report. The defendants later filed a supplemental motion for summary judgment on the ground that the record contained no support for plaintiffs allegations “exclusive of false imprisonment, false arrest and assault and battery.” (Appendix at 21a) The district court, in light of its disposition of the preceding motion for summary judgment, did not act on the supplemental motion for summary judgment.

4 . Pa.Stat.Ann. tit. 12, § 51: “Every suit to recover damages for malicious prosecution or false arrest . . . must be brought within one year from the date of the accruing of such right of action, and not thereafter: >>

5 . Pa.Stat.Ann. tit. 12, § 34:

“Every suit hereafter brought to recover damages for injury wrongfully done to the person, in case where the injury does not result in death, must be brought within two years from the time when the injury was done and not afterwards; . . . ”

6 . 446 Pa. 144, 285 A.2d 109 (1971).

7 . Polite, supra, at 3.

8 . Polite, supra, at 3.

9 . See fn. 6.

10 . The Court of Appeals for the Ninth Circuit in Smith v. Cremins, 308 F.2d 187, 190 (9th Cir. 1962), adverted to the possible difficulties resulting from applying a separate statute of limitations to each constitutional violation alleged in a Section 1983 suit. There, however, the court was dealing with a single act by the defendant which violated several of plaintiffs constitutional rights. In the present case, however, the district court was dealing with separate acts where the alleged constitutional deprivations were not “inextricably intertwined.” Moreover, the statutory framework in Smith was different from that here. The Smith court was faced with a choice between separate limitation statutes applicable to each analogous common law tort and a broad statute applicable to any “liability created by statute.” The court decided that the broad statute was applicable. No such broad statute of limitations is available under Pennsylvania law.

11 . It has been asserted that the matter has been settled by this Court in Curtis v. Everette, 489 F.2d 516 (3d Cir. 1973) and Howell v. Cataldi, 464 F.2d 272 (3d Cir. 1972). See also Johnson v. Glick, 481 F.2d 1028 (2d Cir. 1973).

12 . A complaint may not be dismissed for failure to state a claim “unless it appears beyond doubt that 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, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), quoted with approval by the Supreme Court in Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974).