                                                     NOT PRECEDENTIAL

               UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT

                          ____________

                          No. 13-3823
                         _____________


         JENNIFER BENNETT, on her own behalf and as
          Parent and Natural Guardian of Minor Child A,
              a Minor and Minor Child B, a Minor,
                                                Appellant.

                                v.

  SUSQUEHANNA COUNTY CHILDREN & YOUTH SERVICES;
              SUSQUEHANNA COUNTY



          On Appeal from the United States District Court
              for the Middle District of Pennsylvania
                 (District Court No. 3-12-cv-01912)
          District Judge: Honorable Malachy E. Mannion


            Submitted under Third Circuit LAR 34.1(a)
                     on September 11, 2014



Before: RENDELL, GREENAWAY, JR. and SLOVITER Circuit Judges



                 (Opinion filed: October 22, 2014)
                                      O P I N I O N*

RENDELL, Circuit Judge:

       Plaintiff-Appellant Jennifer Bennett sued Defendants-Appellees Susquehanna

County Children & Youth Services (“SCC&YS”) alleging nine civil rights violations

under 42 U.S.C. § 1983, one violation of the Juvenile Act under 42 Pa. Cons. Stat.

§ 6301, and one claim for punitive damages. The District Court for the Middle District of

Pennsylvania granted defendants’ motion to dismiss and denied Bennett’s motion for

leave to file her deposition transcript. Bennett appeals the District Court’s ruling on ten

of her eleven counts, and we will affirm.

                                      I. Background

       Bennett is a mother of two minor children. In November 2009, one of her children

was taken to the emergency room where doctors noticed questionable bruising. X-rays

revealed a fracture, and the hospital contacted SCC&YS, a state agency that protects

children from neglect and abuse. SCC&YS placed both children under a safety plan and

sent them to live with Allison Reaves, the children’s paternal grandmother. Bennett

claims that, when trying to regain custody of her children, she was intimidated by

defendants who stated she would “never see them [her children] again.” (App. Br. at 8).

Bennett finally regained custody of her children on December 30, 2011.



*This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.


                                             2
       Bennett filed suit in the District Court on September 25, 2012, and defendants

filed a motion to dismiss which was, in large part, based on the statute of limitations.

While the motion was pending, paper discovery commenced and Bennett’s deposition

was taken. In her deposition, Bennett alleged deception, coercion, and intimidation by

defendants. Subsequently, Bennett filed a motion for leave to file her deposition

transcript. Bennett also claimed the statute of limitations should be tolled under federal

equitable tolling principles and/or the continuing violations doctrine, and noted that her

deposition offered further support for these arguments. The District Court granted

defendants’ motion to dismiss with prejudice as to ten of the eleven counts, one without

prejudice, and denied Bennett’s motion for leave to file her deposition transcript.

       Bennett now appeals the denial of her motion to file her deposition transcript and

the granting of defendants’ motion to dismiss, claiming the District Court wrongfully

granted the motion to dismiss by not considering all of the evidence which should have

been properly before it. Our standard of review is plenary, and we view the facts in the

light most favorable to the non-moving party.1 Gwynn v. City of Philadelphia, 719 F.3d

295, 297 (3d Cir. 2013).

                                       II. Discussion

       “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.” Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009). The limitations period for a


1
 The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, and 1367. We
have jurisdiction pursuant to 28 U.S.C. § 1291.
                                              3
§ 1983 action is the limitations period for personal injury torts in the state where the

cause of action arose. Wallace v. Kato, 549 U.S. 384, 387 (2007). Pennsylvania, which

is where Bennett’s cause of action arose, has a two-year statute of limitations. See Kach,

589 F.3d at 634 (citing 42 Pa. Cons. Stat. § 5524(2)).

       Bennett’s cause of action for all claims accrued at the time of the alleged unlawful

seizure and withholding of her two minor children on November 18, 2009.2 Bennett did

not file suit until September 25, 2012, well beyond the two year limit. Therefore,

Bennett’s claims are untimely unless the statute of limitations is tolled under federal

equitable tolling principles, or the continuing violations doctrine applies. However,

neither is applicable to Bennett’s case.

                        A. Federal Equitable Tolling Principles

       This Court has noted three circumstances in which federal equitable tolling is

appropriate: “(1) where a defendant actively misleads a plaintiff with respect to her cause

of action; (2) where the plaintiff has been prevented from asserting her claim as a result

of other extraordinary circumstances; or (3) where the plaintiff asserts her claims in a

timely manner but has done so in the wrong forum.” Lake v. Arnold, 232 F.3d 360, 370

n.9 (3d Cir. 2000).



2
  Bennett states counts one to nine occurred “on or about November 18, 2009.” For count
nine, Cruel and Unusual Punishment Inflicted and Intentional Infliction of Emotional
Distress, Bennett states this claim arose from the “conduct of the Defendants, either
individually and/or jointly as described above.” (Appendix Vol. II of App. Br. at 33a).
Since the conduct described above commenced on November 18, 2009, so too did the
cause of action for cruel and unusual punishment inflicted and intentional infliction of
emotional distress.
                                              4
       The first and third circumstances are not relevant here. Bennett does assert,

however, that defendants prevented her from asserting her claim due to extraordinary

circumstances, namely, duress and undue influence. In order to determine whether this

argument is persuasive, we must first decide which documents we may review.

       Bennett would have us examine her deposition transcript to bolster her claims of

inequity. We have stated that, where a district court did not review the evidence

presented under a summary judgment standard, an appellate court can review such

evidence in the interest of judicial economy. Boyle v. Governor’s Veterans Outreach &

Assistance Ctr., 925 F.2d 71, 74-75 (3d Cir. 1991). However, even in review of both the

pleadings and Bennett’s deposition transcript, we find that Bennett’s allegations and

testimony do not reveal that she was prevented from asserting her claim as a result of

extraordinary circumstances that would warrant equitable tolling.

       Incidents that have warranted equitable tolling under the extraordinary

circumstances prong include egregious attorney behavior, Holland v. Florida, 560 U.S.

631 (2010), preclusion of future review for death penalty cases, Merritt v. Blaine, 326

F.3d 157, 169 (3d Cir. 2003), and, as a guardian, conspiring to deprive a mentally

incompetent person of her constitutional and civil rights, Lake, 232 F.3d at 360.

Bennett’s claims do not rise to this level of severity. Bennett claimed that, when she

resisted signing several safety plans, she was told “many, many, many times” that her

children would be separated and placed in foster care if she did not sign the plans.

(Appendix Vol. II of App. Br. at 72a-73a). These statements were not accompanied by

threats of a court hearing or a petition; rather, it was Bennett’s belief that the SCC&YS

                                             5
caseworkers could take action themselves. While perhaps difficult for Bennett, these

statements do not rise to the level of severity needed to prevent her from asserting her

claim as required for equitable tolling.

       Bennett further argues that, if defendants’ motion to dismiss was converted to a

motion for summary judgment through the consideration of external evidence, the court

would have considered more evidence favorable to Bennett and thus may have produced

a different result. Indeed, when a motion to dismiss is converted to a motion for

summary judgment, a court can consider evidence outside the pleadings. Boyle, 925 F.2d

at 74-75. However, as is evident from the foregoing analysis of the equitable tolling

principle, even if the District Court had reviewed the deposition transcript, the outcome

would not have changed.

                           B. Continuing Violations Doctrine

       Bennett also cannot benefit from the continuing violations doctrine. The

continuing violations doctrine is most often applied in employment discrimination cases

and is an “equitable exception to the timely filing requirement.” Cowell v. Palmer Twp.,

263 F.3d 286, 292 (3d Cir. 2001) (internal quotations marks omitted) (quoting West v.

Phila. Elec. Co., 45 F.3d 744, 754 (3d Cir. 1995)). The focus of the continuing violations

doctrine is on affirmative acts of the defendants that are unlawful. Id. at 293. Courts

consider two factors in determining whether to apply the continuing violations doctrine:

(1) whether the violations were related in subject matter and (2) whether the acts were




                                             6
recurring. Id. at 292.3 In considering the frequency of the acts, courts have not set a

standard for how close the acts must occur to amount to a continuing violation. Id. at

295. Previously, we have found that when incidents are alleged to have occurred

consistently and with increased frequency over a four-year period, this has satisfied the

second prong of the continuing violations doctrine. West, 45 F.3d at 755-56 (associating

consistency with plaintiff’s daily exposure to offensive material).

       Bennett’s claims of duress are related to the same subject matter, for they all deal

with alleged coercion and intimidation surrounding the time period in which she sought

to regain custody of her children. However, the alleged acts were not unlawful for, as

stated previously, the caseworkers reiterated to Bennett that her children could be taken

away from her and put into foster care, a factual possibility that could have occurred upon

their finding of continued abuse.

       Even assuming arguendo these acts were unlawful, the frequency of the

defendants’ alleged coercion does not rise to the level required by the continuing

violations doctrine. Bennett stated that she was told “many, many” times that her

children would be taken away from her but only mentions with specificity those four

times she signed her children’s safety plans. We must consider the affirmative acts of the

defendant, not the perception of the plaintiff. Only four signed safety plans,4 executed by


3
  Note that previous cases, including Cowell, laid out three factors, with the third
requiring a showing of permanency. However, under Mandel v. M & Q Packaging
Corp., 706 F.3d 157, 166 (3d Cir. 2013), there is no longer a permanency requirement
under the continuing violations doctrine.
4
  Safety plans mentioned in Bennett’s deposition include those dated November 18, 2009;
February 19, 2010; April 30, 2010. Bennett also states that there was a safety plan signed
                                             7
three different individuals are mentioned in Bennett’s deposition. Four instances within

the context of four years does not rise to a level of recurrence anticipated by the

continuing violations doctrine.

       Furthermore, “[a] continuing violation is occasioned by continual unlawful acts,

not continual ill effects from the original violation.” Cowell, 263 F.3d at 293 (internal

quotation marks omitted) (quoting Ocean Acres Ltd. v. Dare Cnty. Bd. of Health, 707

F.2d 103, 106 (4th Cir. 1983)). Bennett cannot point to her continued distress as

indicative of a continued violation. Even assuming the defendants’ alleged threats

constituted unlawful acts, such “continuous violations” ended when the last alleged threat

was made, a date more than two years prior to Bennett filing suit. In regards to her claim

of her children’s emotional distress, Bennett claims only one act, the alleged wrongful

displacement of her children, resulted in their emotional distress. As such, the children’s

alleged emotional suffering is merely the effect of an isolated act and cannot benefit from

the continuing violations doctrine.

       Finally, the continuing violations doctrine is not a substitute for a plaintiff’s

“awareness of and duty to assert his/her rights” in a timely fashion. Cowell at 295. As

such, the doctrine “does not apply when plaintiffs are aware of the injury at the time it

occurred.” Morganroth & Morganroth v. Norris, McLaughlin & Marcus, P.C., 331 F.3d


after April 30th, since she signed one under Kim Harshaw, her last caseworker, whereas
the April 30th safety plan was signed by her previous caseworker, Isaac Hobb. A Family
Conference was dated May 28th, 2010, and for purposes of this analysis, we can assume
this was her last interaction with a caseworker and the last possibility of a threat. While
calls to Kim Harshaw are documented after this date, none of the documentation indicates
threats made to Bennett.
                                               8
406, 417 n.6 (3d Cir. 2003). Bennett was aware of an alleged injury5 at the time the first

safety plan was executed. Characterizing the caseworkers’ statements as “threats,”

Bennett was distressed at this time, describing SCC&YS as putting her “through hell.”

(Appendix Vol. II of App. Br. at 72a, 74a). Evidence of the children’s emotional distress

and confusion was also documented at the time they were separated from their mother.

(See id. at 80a, 82a, where the children expressed their dislike for visiting their mother

and expressed their worry that her boyfriend would hurt them again). As such, Bennett

cannot use the continuing violations doctrine to circumvent the statute of limitations

when she was well aware of the alleged emotional distress at the time it occurred.

                                      III. Conclusion

       Neither equitable tolling principles nor the continuing violations doctrine is

applicable to Bennett’s case; thus, her suit is untimely. We therefore will affirm the

judgment of the District Court.




5
  Our analysis in this section has focused on Count IX, the IIED claim since it is the most
ambiguous; however, for Counts I to VIII – the Procedural Due Process, Unreasonable
Search and Seizure, Substantive Due Process, and Deprivation of Liberty claims – the
injury was triggered by the displacement of her children, a singular, isolated event that is
not continuous. As such, these counts cannot qualify under the continuing violations
doctrine.
                                              9
