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    This order grants the defendants' motion for judgment on the pleadings. The plaintiff filed this civil rights lawsuit in 2002 stemming from his 1977 arrest, conviction, and incarceration, which he claims was a wrongful cover-up orchestrated by the hotel night manager and police officer. However, the applicable two-year statute of limitations had long expired, as it began at the time of the 1977 arrest. While the plaintiff argues the limitations period should be equitably tolled due to alleged police corruption, the order finds he has not demonstrated reasonable diligence in pursuing the claim over 25 years or explained the extraordinary delay, as required. Therefore, all of the plaintiff's claims are time-barred.

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    This order grants the defendants' motion for judgment on the pleadings. The plaintiff filed this civil rights lawsuit in 2002 stemming from his 1977 arrest, conviction, and incarceration, which he claims was a wrongful cover-up orchestrated by the hotel night manager and police officer. However, the applicable two-year statute of limitations had long expired, as it began at the time of the 1977 arrest. While the plaintiff argues the limitations period should be equitably tolled due to alleged police corruption, the order finds he has not demonstrated reasonable diligence in pursuing the claim over 25 years or explained the extraordinary delay, as required. Therefore, all of the plaintiff's claims are time-barred.

    Copyright:

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    72 views4 pages

    Order Memorandum

    Uploaded by

    api-27277798
    This order grants the defendants' motion for judgment on the pleadings. The plaintiff filed this civil rights lawsuit in 2002 stemming from his 1977 arrest, conviction, and incarceration, which he claims was a wrongful cover-up orchestrated by the hotel night manager and police officer. However, the applicable two-year statute of limitations had long expired, as it began at the time of the 1977 arrest. While the plaintiff argues the limitations period should be equitably tolled due to alleged police corruption, the order finds he has not demonstrated reasonable diligence in pursuing the claim over 25 years or explained the extraordinary delay, as required. Therefore, all of the plaintiff's claims are time-barred.

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    of 4

    IN THE UNITED STATS DISTRICT COURT

    FOR THE EASTERN DISTRICT OF PENNSYLVANIA

    BLANE NEELY a/k/a WALTER MITCHELL : CIVIL ACTION


    :
    v. :
    :
    SIX CONTINENT’S HOTELS, et. al. : No. 02-3890

    ORDER-MEMORANDUM

    AND NOW, this 15th day of October, 2003, the “Motion for Judgment on the

    Pleadings of Defendants, Six Continents Hotels, Inc., Holiday Inns, Inc. and John

    Sweetwood” is granted, Fed. R. Civ. P. 12(c).1

    This civil rights action arises from the March 1977 arrest and subsequent conviction

    and incarceration of plaintiff Blane Neely a/k/a Walter Mitchell. On March 17, 1977,

    plaintiff was a guest at the Holiday Inn in Philadelphia, where defendant Elliott Jurist was

    the night manager. Second Amended Complaint, ¶¶ 10, 11. At approximately 11 p.m., Jurist

    is alleged to have given defendant David Grove, a Philadelphia police officer, access to

    plaintiff’s telephone records and to have permitted him to listen in on plaintiff’s telephone

    conversations. Second Amended Complaint, ¶ 12. It is further alleged that later that night,

    Jurist and Grove entered plaintiff’s room and assaulted and robbed plaintiff. Second

    Amended Complaint, ¶¶ 13, 14. As a cover-up, plaintiff was then arrested, and subsequently

    convicted and incarcerated based on the testimony of Jurist and Grove.

    1
    In deciding a motion for judgment on the pleadings under Rule 12(c), a court
    must “‘view the facts presented in the pleadings and the inferences to be drawn
    therefrom in the light most favorable to the . . . non-moving party’” Green v. Fund Asset
    Management, L.P., 245 F.3d 214, 220 (3d Cir. 2001), quoting Institute for Scientific
    Info, Inc. v. Gordon & Breach, Science Publishers, Inc., 931 F.2d 1002, 1004 (3d Cir.
    1991). Judgment is appropriate “only if the plaintiffs would not be entitled to relief
    under any set of facts that could be proved.” Id., citing Consolidated Rail Corp. v.
    Protlight, Inc., 188 F.3d 93, 95-96 (3d Cir. 1999).
    On June 25, 2002, plaintiff filed this civil rights action.2 On February 18, 2003,

    movants filed an answer to the second amended complaint, asserting a statute of limitations

    defense, and now move for judgment on the pleadings.3

    The parties agree that Pennsylvania’s two-year statute of limitations applies to

    federal claims arising under 42 U.S.C. §§ 1981, 1985(3) and 1986. In general, civil rights

    claims for false arrest and false imprisonment accrue at the time of the arrest and are time-

    barred if not commenced within two years of the arrest.4 Plaintiff was arrested in March

    1977, and any civil rights claim based on the arrest was time-barred two years later. This

    case was not filed until 2002, 25 years after the arrest and well past the expiration of the

    applicable statute of limitations. Plaintiff contends, however, that the statute of limitations

    in this case is tolled by the federal equitable tolling doctrine.

    “Equitable tolling may be appropriate where the defendant has actively misled the

    plaintiff regarding her cause of action, where the plaintiff has in some extraordinary way

    been prevented from asserting her rights or where she has mistakenly asserted her rights

    in the wrong forum.” Buckalew v. Ebi Companies, 2002 WL 1335110, at *4 (E.D. Pa, June

    2
    Plaintiff pro se filed the original complaint and, on July 15, 2002, an amended
    complaint. On January 13, 2003, Cozen & O’Connor was appointed as counsel for
    plaintiff and immediately moved to amend the complaint. The motion was granted and
    on February 10, 2003, a Second Amended Complaint was filed.
    3
    “A claim may be dismissed as time-barred where it is clear from the complaint
    that the applicable statute of limitations has lapsed.” Buckalew v. Ebi Companies, 2002
    WL 1335110, *1 (E.D. Pa., June 5, 2002) (citations omitted).
    4
    Molina v. City of Lancaster, 159 F. Supp.2d 813 (E.D. Pa. 2001). See also Bailey
    v. Tucker, 533 Pa. 237, 261, 621 A.2d 109, (1993) (“it would seem that being subjected
    to a term of imprisonment is a harm or injury to the person. Nor can there be any doubt
    that the fact of this harm is readily ascertainable upon its occurrence.”)

    2
    5, 2002), citing Lake v. Arnold, 232 F.3d 360, 370 n.9 (3d Cir. 2000); Oshiver v. Levin,

    Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir. 1994). It is plaintiff’s burden to

    demonstrate the applicability of equitable tolling, and part of the burden is proving the

    exercise of reasonable diligence in pursuing the claim. Buckalew, supra, at *4 (citations

    omitted).

    Here, a period of 25 years elapsed between plaintiff’s arrest and his assertion of a

    federal civil rights violation. Plaintiff argues that he was prevented from asserting his rights

    “in an extraordinary way” because defendant Grove was a member of the 5 Squad, a group

    of Philadelphia police officers engaged in “a long-standing pattern of the most appalling

    public corruption.” United States v. Wilson, No. 88-282, Government Sentencing

    Memorandum, at p.2. However, plaintiff does not make out how the 5 Squad prevented

    him from proceeding with his claim. Also, there is no allegation that the 5 Squad was

    involved in plaintiff’s arrest.5 In addition to the 25-year delay between arrest and the filing

    of this claim, there was a 12-year delay after the sentencing of the 5 Squad in 1990.

    Whatever influence or effect the 5 Squad may have had was dissipated upon the conviction

    and sentencing of its members.

    “To invoke equitable tolling, [plaintiff] must show that [he] exercised reasonable

    diligence in investigating and bringing [his] claims.” New Castle County v. Halliburton

    NUS Corp., 111 F.3d 1116, 1126 (3d Cir. 1997) (18-month delay in bringing CERCLA claim

    not excused by equitable tolling; complicated clean-up implementation procedures did not

    5
    Plaintiff’s arrest occurred in March 1977. The documented activities of the 5
    Squad occurred three years later, during the period 1980 through 1984. See Sentencing
    Memorandum.

    3
    constitute extraordinary circumstances). “One who fails to act diligently cannot invoke

    equitable principles to excuse that lack of diligence.” Baldwin County Welcome Center v.

    Brown, 104 S. Ct. 1723, 1726 (1984) (equitable tolling not invoked where pro se plaintiff

    ignored specific instructions regarding filing deadlines and filed employment

    discrimination action after 90-day period permitted by law). Plaintiff does not attempt to

    explain the extraordinary delay in filing his claim. In that he has not satisfied his burden

    of proving diligence in the pursuit of his claim, equitable tolling cannot be sustained.

    Plaintiff’s claims are time-barred.

    BY THE COURT:

    _______________________
    Edmund V. Ludwig, J.

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