                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-25-2008

Brown v. PA State Dept Health
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4014




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                                                          NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT


                                 No. 07-4014


                          GARY EDWARD BROWN,
                                         Appellant

                                       v.

               PENNSYLVANIA DEPARTMENT OF HEALTH;
                      DOYLESTOWN HOSPITAL


                On Appeal from the United States District Court
                     for the Middle District of Pennsylvania
                       (D.C. Civil Action No. 05-cv-2448)
                District Judge: Honorable Christopher C. Conner


                 Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 April 22, 2008
         Before: SLOVITER, BARRY and GREENBERG, Circuit Judges

                         (Opinion filed April 25, 2008)


                                  OPINION



PER CURIAM

    Gary Edward Brown appeals from the District Court’s order granting summary
judgment in favor of Defendant Doylestown Hospital.1 On November 25, 2005, Brown

filed a § 1983 suit against Doylestown Hospital and the Pennsylvania Department of

Health for declarative and injunctive relief alleging that Defendants violated his

Fourteenth Amendment rights and various state and federal laws by facilitating a “gray

market” adoption of him and by failing to provide him with his complete and accurate

medical records in 1993 and 2005.2 The District Court found Brown’s claims both barred

by Pennsylvania’s two-year statute of limitations and unsupported by record evidence.

        Brown was born on February 8, 1955, at Doylestown Hospital. His claims against

the Hospital stem from his belief that Ann and Harold Glenn Brown, the parents who

raised him, are not his biological parents. Instead, he believes that his great aunt, Ethel

Bittle, and his grandfather, Edward Bailey, are his birth parents. He bases this belief on a

birthday card and letter he received from Bittle in February 1993.3 Relying on what

   1
     Brown does not appeal from the District Court’s order of June 5, 2006, dismissing
claims against the Pennsylvania Department of Health. We therefore decline to consider
those claims.
   2
     In addition to his constitutional claim, Brown alleges that Doylestown Hospital
violated 28 Pa. Code § 115.29 by failing to provide true and accurate medical records in
1993 and 2005. As explained infra, this allegation is unsupported by record evidence.
Brown’s additional state and federal law allegations are deemed waived because he failed
to substantively address them in his brief before this Court. See Mitchell v. Cellone, 389
F.3d 86, 92 (3d Cir. 2004) (where an appellant presents an issue in his statement of issues
raised on appeal, but fails to present the issue in the argument section of his brief, he has
abandoned and waived that issue on appeal.).
   3
       The letter states:

        I want to answer your letter more fully, Gary, but not at this writing. My only
        request at this time is for you to think more kindly towards your parents. They

                                              2
Brown’s wife suggested was an “allusion” to adoption in the letter, Plaintiff questioned

Bittle, Ann Brown and Bailey about his suspicions. Bittle responded by sending Brown

his hospital-issued birth certificate and family history, which identifies Ann and Harold

Glenn Brown as his biological parents. (Compl. ¶¶ 6-7.) Bailey responded to Brown’s

questioning by asking, “What is your need to know?”

       In May of 1993, Brown contacted the Bucks County Historical Society and

obtained the birth announcements published in the local newspaper in February 1955.

Brown acknowledges that there was a birth announcement referencing a son born to Mr.

and Mrs. Glenn Brown; nonetheless, he questions the lack of a hospital admission

announcement for Ann Brown. Also, in 1993, Brown requested a copy of his birth

records from Doylestown Hospital. The record clerk allegedly told Brown that his birth

records contained only the hospital-issued birth certificate.

       Ethel Bittle died in April of 2004. In all written correspondence to Brown prior to

her death, Bittle recognized Brown only as her nephew, and never stated that he was her

son. Brown alleges that shortly before her death in April 2004, Bittle told him that he

was her son. That same year, Brown retained an attorney in an effort to investigate his

alleged adoption. However, the Bucks County Court had no record of an adoption that



       have endured much – more than they will ever reveal and I don’t think I am at
       liberty to write anything they do not wish to have discussed or “aired” until I talk
       with them.

(See Dist. Ct. Docket No. #54, Brief in Support of Motion for Summary Judgment, Exh.
D.)

                                              3
would confirm Brown’s suspicions. In 2005, Brown requested his records from

Doylestown Hospital. On February 11, 2005, Brown was permitted to review and copy

his medical records, embedded in Ann Brown’s records, at no charge. Brown was

informed that certain other records were maintained in a different facility, and that the

custodian of those records was not presently available.

       The threshold issue in this case is whether Brown’s claims are barred by

Pennsylvania’s two-year statute of limitations, 42 Pa. Cons. Stat. Ann. § 5524(7).4 See

Owens v. Okure, 488 U.S. 235, 249-50 (1989) (civil rights and constitutional tort claims

are subject to the same statute of limitations as state personal injury actions); Garvin v.

City of Phila., 354 F.3d 215, 220 (3d Cir. 2003) (same). Although the same principles

guide our analysis and we reach the same conclusion as the District Court, we note that

federal law, rather than state law, governs when a § 1983 cause of action accrues. See,

e.g., Genty v. Resolution Trust Corp., 937 F.2d 899, 919 (3d Cir. 1991). A § 1983 cause

of action accrues when the plaintiff knew or should have known of the injury upon which

its action is based. Id.; see also Sameric Corp. of Del., Inc. v. City of Phila., 142 F.3d

582, 599 (3d Cir. 1998).

       We agree with the District Court that the statute of limitations began to run in May

   4
       In general, the limitations period will begin to run when the cause of action accrues,
i.e., the date on which the injury is sustained. Pounds v. Lehman, 558 A.2d 872, 873 (Pa.
Super. Ct. 1989). Here, that date would be February 8, 1955, Brown’s birthday and the
day the alleged “gray market adoption” took place. However, the District Court found
that, under Pennsylvania’s “discovery rule,” an exception applies where an injured person
neither knows nor reasonably should have known of his injury. Fine v. Checcio, 870
A.2d 850, 858 (Pa. 2005).

                                              4
1993 because, at that time, Brown “possessed sufficient facts about the [alleged] harm

done to him that reasonable inquiry would reveal his cause of action.”     Lekas v. United

Airlines, Inc., 282 F.3d 296, 300 (4th Cir. 2002) (emphasis in original) (citing United

States v. Kubrick, 444 U.S. 111, 117 (1979); accord Nasim v. Warden, Md. House of

Corr., 64 F.3d 951, 955 (4th Cir. 1995) (applying the same definition to limitations period

for bringing action under 42 U.S.C. § 1983)).

       As the District Court explained, by May 1993, or at least shortly thereafter, Brown

was no longer “reasonably unaware” of his alleged injury. His suspicion that he was

adopted was aroused by Bittle’s letter and confirmed by his grandfather’s response to his

query on the subject. Indeed, in his brief to this Court, Brown argues that “any

reasonable person would take [Bailey’s response to his 1993 query, ‘What is your need to

know,’] in the affirmative [that he was adopted].” After investigating and obtaining

information that Brown now alleges confirmed his belief that he was adopted, he dropped

the matter for eleven years. It was not until 2004 that Brown retained an attorney to

petition the Bucks County Orphans Court to open his alleged adoption file.

       Because Brown believed he had been adopted by May 1993, the discovery rule is

inapplicable beyond that time and, therefore, his claims associated with the “gray market”

adoption and alleged fabrication of his birth records are barred by the statute of

limitations. Despite Brown’s arguments to the contrary, his Fourteenth Amendment

claim that Doylestown Hospital failed to provide him with complete and accurate records

upon his request in 1993 and claims stemming from the alleged “gray market” adoption

                                              5
are not subject to tolling on equitable grounds or because of fraudulent concealment and

are thus plainly barred.

       Even if Brown’s claims are not time-barred, they cannot survive Defendant’s

motion for summary judgment. Construing the evidence in favor of Brown, there is no

support for Brown’s allegation that a “gray market” adoption took place. First, there is no

evidence to suggest that the medical records he reviewed in 1993 were inaccurate. At

Brown’s request, the Browns twice submitted to DNA testing, at two different

laboratories. The results of both tests confirmed that the Browns are Gary Brown’s

parents by a 99.9% probability. Brown contends that the tests are corrupted; however,

Brown provides no evidence to support that theory. Indeed, the remaining record

evidence supports the tests’ accuracy. In addition to the DNA evidence, Ann and Harold

Brown provided affidavits attesting to their blood types, that they are Brown’s parents

and that he was not adopted. Brown submits no evidence to refute their affidavits but

instead baldly asserts that Ann Brown used false thumb prints during the DNA test and

incorrectly argues that their affidavits are inadmissible because they were not subject to

cross examination. As the District Court observed, Brown’s “unsupported speculation”

that Ann Brown did not give birth to him and that Bittle and Bailey are his biological

parents does not create a genuine issue of material fact. As such, Brown has failed to

provide evidence that would allow a reasonable jury to conclude that Doylestown

Hospital facilitated his alleged “gray market adoption.”

       Brown’s Fourteenth Amendment claim against Doylestown Hospital for the

                                             6
alleged failure to provide him with complete and accurate medical records in 1993

likewise fails on the merits. As the District Court correctly determined, the clerk’s

alleged mistake regarding Brown’s birth records does not “shock the conscience,” and

therefore is insufficient to state a substantive due process claim. See United Artists

Theatre Circuit, Inc. v. Twp. of Warrington, 316 F.3d 392, 402 (3d Cir. 2003) (citation

omitted). Nor is there evidence in the record to support an equal protection claim

pursuant to a “class of one” theory. The record does not reflect, nor does Brown allege,

that Brown was “treated differently from others similarly situated,” or that the record

clerk’s actions were intentional. See Vill. of Willowbrook v. Olech, 528 U.S. 562, 564

(2000); Hill v. Kutztown, 455 F.3d 225, 239 (3d Cir. 2006).

       Although Brown’s claim that Doylestown Hospital failed to provide him with

complete and accurate medical records in 2005 was filed within the limitations period, it

also fails on the merits because it is unsupported by record evidence. On February 11,

2005, Brown was permitted to review and copy his medical records at no cost. Plaintiff

was informed that other records were located at a different facility, whose custodian was

not then available. Brown does not dispute that he made no effort to follow-up with the

custodian or retrieve the records from the other facility and thus cannot maintain a claim

against Doylestown Hospital for failure to provide him with his records. In addition,

Brown’s speculation that the medical records he reviewed are not accurate, based on his

belief that Ann and Harold Glenn Brown are not his biological parents, is also wholly

unsupported by the record. As previously noted, the record contains undisputed DNA

                                             7
evidence that identifies Ann and Harold Glenn Brown as Brown’s biological parents.

Accordingly, the District Court properly rejected all of Brown’s claims with regard to

attempts to access his medical records in 2005.

       For the foregoing reasons we will affirm the District Court’s order granting

summary judgment in favor of Defendant Doylestown Hospital.5




   5
     Brown also appeals from the District Court’s denial of a pair of motions to compel
discovery of interrogatories and for production of records. We are satisfied that the
District Court properly resolved these motions for the reasons stated in the challenged
orders.

                                            8
