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


4-25-2008

Palmer v. Harrisburg
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4535




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Recommended Citation
"Palmer v. Harrisburg" (2008). 2008 Decisions. Paper 1322.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1322


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CLD-179                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 07-4535


                                 SHAUN C. PALMER,
                                                Appellant,
                                        v.

                  CITY OF HARRISBURG, PA; LEVELL JENKINS;
                    MICHAEL A. CONSIGLIO; CASEY SHORE,
                      individually and in their official capacities
                     ____________________________________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                             (D.C. Civil No. 06-cv-01973)
                     District Judge: Honorable Sylvia H. Rambo
                     ____________________________________

         Submitted on Appellees’ Joint Motion For Summary Action and for
       Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) and/or Possible
         Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    April 10, 2008

            Before: AMBRO, FUENTES AND JORDAN, Circuit Judges

                             (Opinion filed: April 25, 2008)


                                        OPINION


PER CURIAM

      Appellant Shaun C. Palmer, a state prisoner, filed a civil rights action pro se on

September 6, 2006 in the Dauphin County Court of Common Pleas against the City of
Harrisburg and Officer Levell Jenkins, and Michael Consiglio and Casey Shore of the

Dauphin County District Attorney’s Office, alleging a violation of his constitutional

rights in connection with the search and seizure of his vehicle. He also included common

law causes of action in his complaint for defamation, trespass, conversion, and intentional

infliction of emotional distress. Palmer sought money damages. The case was removed

by the defendants to United States District Court for the Middle District of Pennsylvania

by notice pursuant to 28 U.S.C. § 1441(c).

         The circumstances giving rise to the complaint are not disputed. On March 13,

2002, Officer Jenkins and others executed a search warrant, which authorized the search

of 1931 Forster Street in Harrisburg, Pennsylvania, Wendy Harris, and all occupants in

the residence at the time of execution of the warrant.1 Palmer was unclothed and in bed

with Ms. Harris when the officers arrived very early in the morning. One of the officers

conducting the search retrieved Palmer’s pants, searched the pockets, and discovered cash

and approximately 20 grams of crack cocaine in Ziploc baggies. Palmer was arrested and

charged with possession with intent to deliver a controlled substance, and possession of

drug paraphernalia.2




   1
       It was alleged that Ms. Harris was selling crack cocaine from this residence.
   2
    Palmer was convicted following a jury trial, and sentenced on June 12, 2003 to a
term of imprisonment of five to ten years. The judgment of sentence was affirmed by the
Superior Court.

                                               2
       Palmer’s vehicle was parked on the street adjacent to the premises searched.

Officer Jenkins requested Palmer’s consent to search the vehicle. Palmer refused. The

officers then had the vehicle towed to Don’s Towing Company pending issuance of a

search warrant. On that same day, Officer Jenkins applied for a warrant to search the

vehicle on the ground that Palmer had a prior conviction for a controlled substance

offense, and was suspected of using the vehicle to store additional drugs and cash beyond

that discovered in his clothing. The warrant was authorized by a District Justice, the

vehicle was impounded and searched, and nothing further was discovered. Information

regarding the seizure of Palmer’s vehicle was, however, published in The Patriot-News

(giving rise to his cause of action for defamation).

       Soon after the seizure of his vehicle, Palmer began dealing with the Dauphin

County District Attorney’s Office in order to regain possession of it. On or about June

12, 2003, the District Attorney’s Office defendants began offering to return the vehicle in

consideration of a payment from Palmer of $1000.00. Palmer refused. On July 3, 2002,

the District Attorney’s Office commenced a civil forfeiture action, No. 3001 CV 2002.

On November 25, 2003, Palmer’s mother, Joyce Palmer, made the $1000.00 payment in

return for the vehicle, and the District Attorney’s Office then discontinued the forfeiture

action. Nevertheless, Palmer filed a motion for return of property in the Dauphin County

Court of Common Pleas on September 2, 2004 at No. 1508 CR 2002, seeking a refund of

the $1000.00 payment. Following a hearing, the Honorable John Cherry ruled that the



                                              3
action had been settled by the payment and return of the vehicle.

       In the instant civil rights action, Palmer contended that Officer Jenkins violated his

Fourth Amendment rights by towing his vehicle without a warrant and without probable

cause. Moreover, the search warrant applicable to the vehicle was unconstitutional and

invalid. He contended that he was entitled to, and deprived of, a full judicial hearing

prior to the search and seizure of his vehicle, and the failure to provide such a hearing

violated his Fourteenth Amendment right to procedural due process. Palmer further

contended that the District Attorney’s Office failed to follow the correct procedures for

civil forfeitures under the Controlled Substances Forfeiture Act, 42 Pa. Cons. Stat. Ann. §

6801, and the Vehicle Act, 35 Pa. Cons. Stat. Ann. § 831.2, and improperly retained his

vehicle for twenty months.

       The defendants moved to dismiss the complaint under Federal Rule of Civil

Procedure 12(b), contending, among other things, that all claims were barred by the

applicable statutes of limitation, the City of Harrisburg could not be held liable in an

action for damages under 42 U.S.C. § 1983 on the basis of respondeat superior, Palmer

had no legally cognizable right to a hearing prior to the towing of his vehicle, which

occurred pursuant to a facially valid warrant issued by a neutral district magistrate, and

the action was barred by the doctrine of accord and satisfaction. Palmer opposed these

motions, conceding that his action was time-barred but contending that he did not

“discover” his injury until after he had regained possession of his vehicle, and researched



                                              4
the law and discovered that his vehicle had been improperly seized. This occurred no

later than September 2, 2004, the date when he filed his motion for return of property.

Palmer also filed a motion to amend his civil rights complaint.

       In an order entered on November 8, 2007, the District Court granted the motions to

dismiss, denied Palmer’s motion to amend his complaint, and dismissed the complaint.

The court concluded that the federal civil rights causes of action and the common law

causes of action for trespass, conversion, and intentional infliction of emotional distress

were time-barred. See Garvin v. City of Philadelphia, 354 F.3d 215, 220 (3d Cir. 2003)

(claims brought under section 1983 are subject to two-year state statutes of limitations

governing personal injury actions); Genty v. Resolution Trust Corp., 937 F.2d 899, 919

(3d Cir. 1991) (same). All of the claims against Officer Jenkins arose between March 13,

2002, when Palmer’s vehicle was seized, and April 30, 2002, the date of his preliminary

hearing.3 The applicable statute of limitations was two years, and thus the September 6,

2006 filing was not timely as to him. Palmer’s claims against Deputy District Attorneys

Consiglio and Shore arose between March 13, 2002 and November 25, 2003, the date the

vehicle was returned and the civil forfeiture action was discontinued. Again, the

applicable statute of limitations was two years, and thus the September 6, 2006 filing was

not timely as to them. Palmer’s common law cause of action for defamation was barred

by the applicable one-year statute of limitations.

   3
    The date the vehicle actually was searched is not disclosed by the record, but it was
undisputed that it was searched prior to Palmer’s preliminary hearing.

                                              5
       Furthermore, Palmer was not entitled to rely on the discovery rule. The discovery

rule was adopted by Pennsylvania courts in recognition of the fact that some injuries are

not immediately apparent. See Fine v. Checcio, 870 A.2d 850, 858 (Pa. 2005). The

discovery rule applies in cases where the injured party is unable to know that he is injured

and to know what caused the injury, despite the exercise of reasonable diligence. Id. In

that case, the statute of limitations does not begin to run until the person “discovers” the

injury. Id. at 859. However, the standard of reasonable diligence is an objective one and

turns on the nature of the injury and whether it is latent, and does not turn on “any

specific characteristics unique to the plaintiff that might otherwise prevent [him] from

recognizing his injury as a cause of action. See Lake v. Arnold, 232 F.3d 360, 367 (3d

Cir. 2000). Thus, the fact that Palmer did not know that he might have a valid cause of

action was not relevant.4 The alleged injuries and the causes thereof were immediately

ascertainable. Thus, the discovery rule did not apply in Palmer’s case.

       Finally, the action could not be maintained against the City of Harrisburg because

Palmer had not identified a policy, custom, or practice by the City that led to a violation

of his civil rights, Monell v. Dep’t of Social Services of City of New York, 436 U.S. 658,

690 (1978) (Congress did not intend for municipality to be held liable under section 1983

solely because it employs a tortfeasor), and there was no basis for granting him leave to

   4
     We observed in Miller v. Philadelphia Geriatric Center, 463 F.3d 266 (3d Cir. 2006),
that this objective test is, however, sufficiently flexible to take into account defects in a
plaintiff’s mental capacity. Id. at 276 (citing Fine v. Checcio, 870 A.2d 850, 858 (Pa.
2005)).

                                              6
amend his complaint because an amendment would not cure the timeliness deficiency.

       Palmer appeals. Our Clerk granted him leave to appeal in forma pauperis and

advised him that his appeal was subject to dismissal under 28 U.S.C. § 1915(e)(2)(B). An

appellant may prosecute his appeal without prepayment of the fees, 28 U.S.C. §

1915(a)(1), but the in forma pauperis statute provides that the Court shall dismiss the

appeal at any time if the Court determines that it is frivolous, 28 U.S.C. §

1915(e)(2)(B)(i). An appeal is frivolous when it lacks an arguable basis either in law or

fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). In addition, the appellees have

submitted a joint motion for summary action, Third Circuit LAR 27.4 and I.O.P. 10.6,

which Palmer has opposed in writing.

       We will dismiss the appeal as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i). We

have jurisdiction under 28 U.S.C. § 1291. “[W]hen ruling on a defendant's motion to

dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a judge must accept as true

all of the factual allegations contained in the complaint.” Erickson v. Pardus, 127 S. Ct.

2197, 2200 (2007) (citing Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1965 (2007)).

The court may consider certain narrowly defined types of material without converting the

motion to dismiss to a summary judgment motion, such as when a document is integral to

or explicitly relied upon in the complaint. In re Rockefeller Center Properties, Inc.

Securities Litig., 184 F.3d 280, 287 (3d Cir. 1999). A court may also consider an

“undisputedly authentic document that a defendant attaches as an exhibit to a motion to



                                              7
dismiss if the plaintiff's claims are based on the document.” Pension Benefit Guar. Corp.

v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). In this case, those

exhibits properly considered (all of which were attached to the complaint) included the

affidavit of probable cause and search warrant relating to the search of 1931 Forster

Street, the affidavit of probable cause relating to the search of Palmer’s vehicle, portions

of a transcript from the preliminary hearing on April 30, 2002, portions of the Dauphin

County Court of Common Pleas criminal docket in Commw. v. Palmer, 1508-cr-2002,

Palmer’s motion for return of property, and the December 20, 2004 transcript from the

hearing before Judge Cherry.

       This appeal of the District Court’s decision to dismiss the complaint under Rule

12(b)(6) is frivolous because it lacks an arguable basis in law. The District Court

properly determined the dates when Palmer’s claims accrued,5 and properly applied the



   5
     In Gibson v. Superintendent, N.J. Dep’t of Law and Public Safety, 411 F.3d 427 (3d
Cir. 2005), cert. denied, 547 U.S. 1035 (2006), we addressed whether the favorable
termination rule of Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), applied to Fourth
Amendment claims, and we approved of a fact-based inquiry into whether the particular
claim implied the invalidity of the underlying conviction. Id. at 447-451. Here, Palmer’s
Fourth Amendment claim concerning the warrantless towing of his car, if successful,
would not have the effect of rendering his criminal convictions invalid because no
contraband was found in his car. Id. at 451. His convictions were based on evidence
seized from his pants. To the extent that Palmer intended the instant civil rights action to
include a Fourth Amendment challenge to the search of his pants, said challenge is barred
by Heck v. Humphrey, 512 U.S. 477 (1994), because success on such a claim would
necessarily imply the invalidity of his convictions, which have never been invalidated.
Heck holds that a prisoner’s civil rights suit for damages or equitable relief is barred
unless he can demonstrate that his conviction or sentence has been invalidated. 512 U.S.
at 486-87.

                                              8
governing law in concluding that his federal constitutional causes of action were barred

by the two-year statutes of limitation applicable to torts. See 42 Pa. Cons. Stat. Ann. §

5524(2), (7). See also Wilson v. Garcia, 471 U.S. 261 (1985) (state statute of limitation

applies to actions under 42 U.S.C. § 1983). The common law defamation action was

barred by the one-year statute of limitation, 42 Pa. Cons. Stat. Ann. § 5523(1), and the

common law causes of action for trespass, conversion, and intentional infliction of

emotional distress all were barred by two-year statutes of limitation, 42 Pa. Cons. Stat.

Ann. § 5524(2), (3), (7). The discovery rule does not apply in Palmer’s case, because the

alleged injuries and the causes thereof were immediately ascertainable, and the tardy

discovery of the legal basis of his claim does not warrant application of the rule. Cf.

Matthews v. Kidder, Peabody & Co., 260 F.3d 239, 257 n.26 (3d Cir. 2001) (ignorance of

legal elements of claim immaterial to equitable tolling analysis). Monell bars the action

against the City of Harrisburg, and the District Court properly exercised its discretion to

deny the motion to amend the complaint because any amendment would have been futile

in view of the timeliness problem, see Foman v. Davis, 371 U.S. 178, 182 (1962).

       We will dismiss the appeal as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i). The

appellees’ joint motion for summary action is denied as moot.




                                              9
