                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-7-2000

Lake v. Arnold
Precedential or Non-Precedential:

Docket 98-3558




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Filed November 7, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-3558

ELIZABETH J. ARNOLD LAKE; JUSTIN WILSON LAKE,
husband and wife,
       Appellants

v.

FREDERICK S. ARNOLD; AUDREY L. ARNOLD, husband
and wife; DANIEL M. FRIDAY M.D.; TYRONE HOSPITAL;
RALPH W. CRAWFORD M.D.

Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 95-cv-00245)
District Judge: Honorable Gary L. Lancaster

Argued: September 7, 1999

Before: SLOVITER and ROTH, Circuit Judges
POGUE1, Judge

(Filed: November 7, 2000)



_________________________________________________________________
1. Honorable Donald C. Pogue, Judge for the United States Court of
International Trade, sitting by designation.
       Kristin M. Banasick, Esquire
        (Argued)
       321 South Richard Street
       Bedford, PA 15522

        Attorney for Appellant

       Stephen D. Wicks, Esquire
       Law Office of Stephen D. Wicks
       109 Lakemont Park Boulevard
       Altoona, Pennsylvania 16602

        Attorney for Appellees
        Frederick S. Arnold and
        Audrey L. Arnold

       David R. Bahl, Esquire (Argued)
       McCormick, Reeder, Nicholas,
       Bahl, Knecht & Person
       835 West Fourth Street
       Williamsport, Pennsylvania 17701

        Attorney for Appellees
        Daniel M. Friday, M.D. and
        Ralph W. Crawford, M.D.

       John V. DeMarco, Esquire (Ar gued)
       Doyle & McCrory
       One Chatham Center, St. 950
       Pittsburgh, Pennsylvania 15219

        Attorney for Appellee
        Tyrone Hospital

OPINION OF THE COURT

ROTH, Circuit Judge:

Elizabeth Lake is mentally retarded. In 1977, at 16 years
of age, she was permanently sterilized. She and her
husband, Justin, ask in this appeal whether they can still
challenge the sterilization under state and federal law by
bringing claims against her father and step-mother who
authorized the operation, against the doctors who
performed it, and against the hospital where it was

                                  2
performed. Although we agree with the District Court's
decision that the Lakes' state claims are time-barred by
Pennsylvania's two-year statute of limitations for personal
injury suits, we do not agree with its conclusion that the
federal civil rights claims are also untimely. Given our
earlier decision that the mentally retar ded are a protected
class for the purposes of 42 U.S.C. S 1985(3), we must
determine whether federal tolling doctrine will permit
Elizabeth Lake to escape the bar of the statute of
limitations on her federal claims. For the r easons we
explain below, we will remand this case to the District
Court to make this determination in further pr oceedings
consistent with this opinion.

In addition to affirming the dismissal of Elizabeth's state
personal injury claims, we also affirm the District Court's
dismissal of Justin's state law loss of consortium claim.
Finally, we affirm the District Court's denial of the Lakes'
request to amend their complaint.

I. Facts

Plaintiff-appellant Elizabeth Arnold Lake was born in
Ventura, California, in 1961 to Helga Hadvig and Frederick
Arnold. Until she was twelve, Elizabeth lived with her
mother and her mother's boyfriend in Minnesota. Her father
then invited her to move to Saxton, Pennsylvania, to live
with him and his wife, Audrey Arnold. Elizabeth accepted
the offer. Elizabeth attended special education classes
through the eighth grade, which she completed at age 16
when she left school.

That same year, in June 1977, Elizabeth underwent a
tubal ligation at Tyrone Hospital, in Tyr one, Pennsylvania.
The Lakes allege that the hospital had a policy allowing the
sterilization of the mentally retarded. They contend that on
the advice of the family physician, Dr. Chester Isenberg,
Elizabeth was taken to the hospital by her father and step-
mother. Despite the fact that Elizabeth was mentally
retarded and allegedly illiterate, hospital employees gave
her a consent form to sign, authorizing the pr ocedure.
Elizabeth signed the form. Dr. Daniel Friday, supervised by
Dr. Ralph Crawford, perfor med the surgery. At no point did

                                3
any of the defendants seek to have Elizabeth's inter ests, as
opposed to her parents' interests, r eviewed by a court or
other appropriate forum.

The Lakes claim that after the surgery Elizabeth's father
and step-mother removed her from school and had her do
housekeeping duties in their home. She remained a
member of the Arnold household until she was in her
twenties, when she moved into a group home.

In May 1993, Justin and Elizabeth decided to get
married. In December 1993, at Justin's behest, Elizabeth
visited a gynecologist to discuss the couple's desir e to start
a family. During this visit, the doctor told Elizabeth that
she could not bear children because of her 1977 tubal
ligation. Allegedly, this visit to the doctor was the first time
that Elizabeth learned that her 1977 sur gery had left her
permanently sterilized. Justin and Elizabeth were married
in 1994.

II. Procedural History

The Lakes first filed this civil action on May 31, 1995, in
Pennsylvania state court against the following defendants:
(1) Elizabeth's father, Frederick S. Ar nold, (2) her
stepmother, Audrey L. Arnold, (3) Dr. Daniel M. Friday, (4)
Dr. Ralph W. Crawford, and (5) Tyrone Hospital. The action
alleged nine counts, including state claims for civil battery,
negligence, lack of informed consent, and outrageous
conduct, as well as two federal counts, one under 42 U.S.C.
S 1983 for violation under color of state law of Elizabeth's
constitutional right to procreate and the other under 42
U.S.C. S 1985(3) for conspiracy to deprive Elizabeth of the
right to procreate because she was mentally retarded.
Justin also filed a claim of loss of consortium based on
Elizabeth's infertility.

Tyrone Hospital successfully petitioned to r emove the
case to federal court. Following removal, the plaintiffs filed
an amended complaint. All the defendants then filed
motions to dismiss pursuant to Fed. R. Civ. Pr o. 12(b)(6) for
failure to state a claim. Adopting the Magistrate Judge's
Report and Recommendation, the District Court in June
1996 dismissed the two federal civil rights claims,

                               4
remanded the remaining state claims to the state court,
and relinquished jurisdiction.

Elizabeth and Justin appealed this decision. On May 2,
1997, we reversed the District Court's decision to dismiss
the federal civil rights claims, concluding that (1) the Lakes
had alleged sufficient facts to sustain a claim of state action
under S 19832 and (2) the mentally disabled were a
protected class for the purposes of a S 1985(3) conspiracy
claim. See Lake v. Arnold, 112 F .3d 682 (3d Cir. 1997)
(Lake I). We remanded the case to the District Court for
further proceedings.

On remand, in response to the amended complaint that
reasserted the Lakes' state and federal claims, the
defendants again moved to dismiss, this time contending
that the Lakes' claims were time-barred by the relevant
Pennsylvania statute of limitations. The Magistrate Judge
once again ruled for the defendants, recommending in his
Report and Recommendation that Elizabeth's claims be
dismissed as time-barred and that Justin's loss of
consortium claim be dismissed on substantive gr ounds. See
Lake v. Arnold, No. 95-245J (W.D. Pa. Mar. 10, 1998) (Lake
II). Both parties filed timely objections. The Lakes also
requested leave to amend their complaint to allege new, but
unspecified, facts. The District Court, however , adopted the
Magistrate Judge's recommendations on the statute of
limitations and on Justin's loss of consortium claim and
denied the Lakes' request for leave to amend their
complaint. See Lake v. Arnold, No. 95-245J (W.D. Pa. Oct.
30, 1998) (Lake III).3 It is this order that the Lakes now
appeal.

The District Court had subject matter jurisdiction over
the Lakes' federal civil rights claims under 28 U.S.C. S 1331
and supplemental jurisdiction over their related state
_________________________________________________________________

2. We found that the Lakes' allegations that Tyrone Hospital was a state
actor were adequate to withstand a motion to dismiss.

3. The Magistrate Judge also dismissed Dr . Crawford's defense that he
was not Dr. Friday's supervisor and Audr ey Arnold's defense that she
owed Elizabeth no legal duty of protection. See Lake III, slip op. at 3-4
nn. 3-4. Neither party, however, appeals these decisions and we do not
address them.

                               5
claims under 28 U.S.C. S 1367. We have appellate
jurisdiction under 28 U.S.C. S 1291.

III. Statute of Limitations

A. Standard of Review

We exercise plenary review of the District Court's
dismissal of the Lakes' claims on statute of limitations
grounds under Fed. R. Civ. P. 12(b)(6). See Algrant v.
Evergreen Valley Nurseries Ltd. Partnership, 126 F.3d 178,
181 (3d Cir. 1997). This plenary review extends to the
District Court's choice and interpretation of applicable
tolling principles and its conclusion that the facts
prevented a tolling of the statute of limitations. See Sheet
Metal Workers Local 19 v. 2300 Group, Inc., 949 F.2d 1274,
1278 (3d Cir. 1991) (citing Venau's v. Vic's Meat Market,
Inc., 896 F.2d 43, 45 (3d Cir. 1990)). We assume, for the
purposes of our review, that all the facts the Lakes allege in
their complaint are true and we give them, as the
nonmoving parties below, the benefit of all r easonable
inferences one can draw from these facts. We review the
District Court's determinations of state law de novo. See
Salve Regina College v. Russell, 499 U.S. 225, 231 (1991);
Nelson v. County of Allegheny, 60 F.3d 1010, 1012 (3d Cir.
1995).

B. Applicable Statute of Limitations

The District Court adopted the Magistrate Judge's
recommendation that Pennsylvania's two-year statute of
limitations for personal injury lawsuits gover ned both the
Lakes' state and federal claims. See Lake III . While we agree
that Pennsylvania law bars Elizabeth's state law claims, we
do not agree with the District Court's deter mination that
the federal claims are also time-barred. Although the
Pennsylvania statute of limitations is applied to the federal
claims, federal tolling doctrine may be applicable to
determine whether Elizabeth's federal claims are timely. See
Oshiver v. Levin, Fishbein, Sedran & Berman , 38 F.3d 1380,
1387 (3d Cir. 1994) (applying federal tolling to limitations
period in employment discrimination case); Heck v.

                               6
Humphrey, 997 F.2d 355, 357-58 (7th Cir. 1993). As we
discuss below, application of the federal tolling doctrine
leads us to conclude that the federal claims may not be
barred.

1. State Personal Injury Claims

Elizabeth's state claims run the gamut of personal injury
claims common to medical malpractice suits, alleging (1)
civil battery, (2) negligence by Elizabeth's par ents, the
doctors, and the hospital, (3) lack of infor med consent, and
(4) outrageous conduct by her parents, the doctors and the
hospital. The District Court, adopting the Magistrate
Judge's recommendation, dismissed them all as time
barred by Pennsylvania's two-year statute of limitations for
personal injury suits. See 42 Pa. C.S. S 5524 (West 1999).4

The statute of limitations begins to run "fr om the time
the cause of action accrued," which we have pr eviously
interpreted to mean when "the first significant event
necessary to make the claim suable" occurs. Ross v. Johns-
Mansville Corp., 766 F.2d 823, 826 (3d Cir. 1985); see
generally 42 Pa. C.S. S 5502(a) (W est 1999). Thus,
Elizabeth's claim under state law accrued in 1977, when
she was sterilized. Although theoretically Elizabeth could
have brought her claim in 1977, she contends that as a
practical matter she could not have done so because she
was 16 years old and mentally retarded. If a claim were to
have been brought on her behalf at that time, it would have
been brought by her guardians, her father and step-mother,
see, e.g., Walker v. Mummert , 146 A.2d 289, 291 (Pa. 1958),
but it was the guardians who in fact arranged for the
sterilization to be performed.
_________________________________________________________________

4. The statutory language reads in pertinent part:

       The following actions and proceedings must be commenced within
       two years: . . .

       (2) An action to recover damages for injuries to the person or
       for the death of an individual caused by the wr ongful act or
       neglect or unlawful violence or negligence of another.

       . . .

42 Pa. C.S. 5524 (West 1999).

                                  7
Under the two-year limitations period, Elizabeth's cause
of action expired in 1979, two years after her operation. At
the time of Elizabeth's sterilization, the statute of
limitations did not toll for either minority or incompetence.
See Walter v. Ditzler, 227 A.2d 833 (Pa. 1967). Although the
statute was later amended in 1984 to toll for minors until
they reached age 18, that amendment was not r etroactive.
See Maycock v. Gravely Corp., 508 A.2d 330 (Pa. 1986).
Even if it were retroactive, however , Elizabeth's claim would
have expired in 1986, making her 1993 claims still
untimely. Moreover, the statute of limitations was never
amended to include incompetency as grounds for tolling.
See 42 Pa. C.S. S 5533 (West 1999). 5 Thus, Elizabeth's
mental retardation is not a basis for pr eserving her claim
under Pennsylvania's tolling statute.6

Pennsylvania common law does, however, allow some
"breathing room," as the Magistrate Judge's report
recognized, in that it recognizes the discovery rule, which
tolls the statute of limitations until a plaintif f actually
discovers the harm caused by an earlier inflicted but latent
_________________________________________________________________

5. The statutory language reads:

       (a) General rule.--Except as otherwise provided by statute,
insanity
       or imprisonment does not extend the time limited by this
       subchapter for the commencement of a matter.

       (b) Infancy.--If an individual entitled to bring a civil action is
an
       unemancipated minor at the time the cause of action accrues, the
       period of minority shall not be deemed a portion of the time period
       within which the action must be commenced. Such person shall
       have the same time for commencing an action after attaining
       majority as is allowed to others by the provisions of this
subchapter.
       As used in this subsection the term "minor" shall mean any
       individual who has not yet attained the age of 18.

42 Pa. C.S. S 5533 (West 1999).

6. The Pennsylvania Supreme Court justified its strict construction of the
personal injury statute of limitations in regar d to the mentally
incompetent in its opinion in Walker v. Mummert, 146 A.2d 289, 291 (Pa.
1958), in which the court emphasized that the practice of appointing a
guardian, who can bring suit on behalf of the incompetent, would
mitigate against any harsh consequences from a strict construction of
the statute of limitations against the incompetent.

                                  8
injury. See Ayers v. Morgan, 154 A.2d 788 (Pa. 1959)
(permitting statute of limitations to toll for plaintiff's
injuries that later developed from doctor leaving a sponge in
his abdomen during surgery).

Nevertheless, the discovery rule does not af fect
Elizabeth's state claims because the circumstances under
which it can be invoked depend on the nature of the injury
rather than any specific characteristics unique to the
plaintiff that might otherwise prevent her from recognizing
her injury as a cause of action; such unique characteristics
include one's mental state. See, e.g. , Dalrymple v. Brown,
701 A.2d 164 (Pa. 1997) (denying discovery rule for
repressed memory syndrome); Molineux v. Reed, 532 A.2d
792 (Pa. 1987) (permitting defendants to assert limitations
defense because plaintiff had no evidence of fraudulent
concealment). This objective standard pr events Elizabeth
from pursuing her claim. Her injury was not latent;
therefore, it was not the latent natur e of the injury that
prevented her from knowing of it. It was her mental
retardation and her illiteracy that wer e the causes for her
failing to discover her injury. These characteristics are
particular to Elizabeth and do not depend on the type of
injury she suffered.

The Lakes now argue, however, that it might be possible
for Elizabeth to meet the discovery rule's r easonableness
standard, regardless of her mental r etardation and
illiteracy. However, the Lakes have alleged in this action
that Elizabeth could not understand the natur e and scope
of the operation. In light of this repr esentation of her
inability to appreciate the nature and scope of sterilization
surgery as a reasonable person would, we must conclude
that Elizabeth could not meet the reasonableness standard.
Moreover, because Pennsylvania law r equires a plaintiff to
exercise a reasonable amount of diligence and vigilance
when pursuing a claim, see Redenz v. Rosenber g, 520 A.2d
883, 886 (Pa. Super. Ct. 1987), Elizabeth's invocation of the
discovery rule is further undermined by the fact that she
took no steps to inquire into the natur e of her operation
until almost two decades after it was perfor med. In
addition, in determining diligence, we would again evaluate
the adequacy of the inquiry by the reasonable person

                               9
standard, not by the standard of the mentally retarded and
illiterate.

There is one other circumstance under which a plaintiff
can escape the rigors of Pennsylvania's statute of
 949<!>limitations: when the defendants have intentionally

misinformed the plaintiff or concealed information from her
so that they are estopped from invoking the statute of
limitations. See Walters v. Ditzler, 227 A.2d 833 (Pa. 1967).
As we noted above, however, the Lakes do not allege that
the defendants intentionally misinformed Elizabeth about
her sterilization.

Finally, we are unwilling to accept the Lakes' argument
that we should distinguish existing Pennsylvania pr ecedent
that prohibits relying on subjective mental characteristics
to invoke the discovery rule on the "permanent" or
"biological" nature of Elizabeth's mental state. As the
defendants correctly point out, these ar e medical rather
than legal distinctions. As such, they cannot serve as a
basis for reinterpreting what seems to be clearly stated
Pennsylvania law: mental incompetency does not toll the
personal injury statute of limitations.

In sum, under the Pennsylvania statute of limitations,
Elizabeth had two years from the date of her operation to
bring her state law personal injury claims. Neither the state
statutory tolling provisions, which do not authorize tolling
for mental incompetency, nor the state discovery rule,
which applies an objective standard for deter mining when
an individual should discover a latent injury, af ford
Elizabeth any relief from the conclusion that her state
claims are time-barred by Pennsylvania's two-year statute
of limitations. While this conclusion appears harsh, under
principles of federalism and comity between state and
federal courts, we must respect the state's decision to
determine the appropriate policies, including the statute of
limitations and their related tolling pr ovisions, for its own
judicial procedures.

2. Federal Causes of Action Under Sections 1983 and
1985

The Lakes also assert that the defendants' r ole in
permanently sterilizing Elizabeth gives rise to two federal

                                10
causes of action for violating her substantive due process
right to procreate. See Skinner v. Oklahoma, 316 U.S. 535
(1942). Because neither S 1983 nor S 1985(3) contains a
statute of limitations, we must rely on 42 U.S.C. S 1988,
which guides our selection of the appropriate time period to
fill the gap. Section 1988 requires us to use the statute of
limitations for the state where the federal court sits unless
its application would conflict with the Constitution or with
federal law.7

In determining which state limitations period to use in
federal civil rights cases, we look to the general, residual
statute of limitations for personal injury actions. See Wilson
v. Garcia, 471 U.S. 261, 276-80 (1985). W e must also
incorporate any relevant state tolling rules. See Hardin v.
Straub, 490 U.S. 536, 543-44 (1989). Thus, forS 1983 and
S 1985 actions originating in Pennsylvania, we look to 42
Pa. C.S. SS 5524 and 5533. See Rose v. Bartle, 871 F.2d
331, 347 (3d Cir. 1989) (S 1983); Bougher v. University of
Pittsburgh, 882 F.2d 74, 79 (3d Cir . 1989) (S 1985).

As we recognized in analyzing Elizabeth's state claims in
Part III.B.1, Pennsylvania's statute of limitations requires
all personal injury claims to be brought within a two-year
time period and is not tolled for mental incompetence.
Because Elizabeth's sterilization occurred well outside this
_________________________________________________________________

7. Title 42 U.S.C. S 1988 provides, in relevant part:

         The jurisdiction in civil and criminal matters conferred on the
         district courts by the provisions of this T itle, and of Title
"CIVIL
         RIGHTS," and of Title "CRIMES," for the protection of all persons
in
         the United States in their civil rights, and for their vindication,
shall
         be exercised and enforced in confor mity with the laws of the
United
         States, so far as such laws are suitable to carry same into effect;
         but in all cases where they are not adapted to the object, or are
         deficient in the provisions necessary to fur nish suitable remedies
         and punish offenses against law, the common law, as modified and
         changed by the constitution and statutes of the State wherein the
         court having jurisdiction of such civil or criminal causes is held,
so
         far as the same is not inconsistent with the Constitution and laws
of
         the United States, shall be extended to and govern the said courts
         in the trial and disposition of the cause.

(emphasis added).
11
time frame, any injury she suffered would appear to be
barred as untimely. This conclusion, however , is premature.
We must first determine whether the state's tolling
provisions themselves conflict with federal law and policy,
a question that is not squarely governed by Wilson and
Hardin.

Wilson "principally involves the second step in the
process [of applying S 1988]: the selection of `the most
appropriate' or `the most analogous' state statute of
limitations to apply" to S 1983 claims. Wilson, 471 U.S. at
268. The policies that motivated Wilson, i.e., uniformity,
certainty, and the minimization of unnecessary litigation,
do not frame our analysis because we are instead
concerned with S 1988's third pr ong: whether the state
limitations statute conflicts with federal law and policy. See
Hardin, 490 U.S. at 544 n.14 (concluding that Wilson's
policies are "more pertinent to deter mine which state laws
are appropriate than whether application of those laws
fosters the policies of S 1983."). Similarly, although Hardin
analyzed whether tolling statutes in general conflicted with
S 1983's policies of compensation and deterr ence, it did not
hold that courts should ignore whether a state's particular
tolling provision itself conflicts with federal law and policy.
We must still, then, decide whether Pennsylvania's tolling
rule satisfies this inquiry. See Board of Regents v. Tomanio,
446 U.S. 478, 486 (1980) (requiring deter mination of
whether the New York tolling rule contradicted federal law).

As a policy matter, SS 1983 and 1985(3) are designed to
compensate victims whose federal constitutional or
statutory civil rights have been violated and to pr event
future abuses of state power. See Burnett v. Grattan, 468
U.S. 42, 53 (1984). As such, these remedial statutes strive
to give victims the opportunity to sue for r elief. See id. at
55. In contrast, state statutes of limitations ar e not crafted
to promote federal remedial policies. See Occidental Life Ins.
Co. v. EEOC, 432 U.S. 355, 367 (1977) (noting that "[s]tate
legislatures do not devise their limitations period with
national interests in mind"). This disconnect means that,
occasionally, the state statute of limitations must be
modified to promote the federal inter ests at bar.

                               12
With this background in mind,   let us look carefully at the
federal claims that Elizabeth   is asserting. W e held in Lake
I that the mentally retarded,   as a class, are entitled to
protection under civil rights   laws such asS 1985(3) because

       [t]he fact that a person bears no responsibility for a
       handicap, combined with the pervasive discrimination
       practiced against the mentally retarded and the
       emerging rejection of this discrimination as
       incompatible with our ideals of equality convinces us
       that whatever the outer boundaries of the concept, an
       animus directed against the mentally retar ded includes
       the elements of a class-based invidiously
       discriminatory motivation.

112 F.3d at 688 (quoting Novotny v. Gr eat Am. Fed. Sav.
and Loan Ass'n, 584 F.2d 1235, 1243 (3d Cir. 1978))
(internal quotation marks and brackets omitted). As we also
pointed out, involuntary sterilization is one manifestation of
this discrimination against the mentally incompetent. See
id. at 688 (citing law review articles). Elizabeth's federal
claims are based on the violation of her constitutional right
to procreate. Consequently, her claims ar e the type that
S 1985(3) and S 1983 are designed to protect.

Moreover, under the federal policy that the mentally
retarded are a protected class, Elizabeth should not be
denied her right to sue solely because of her mental
retardation. In Elizabeth's case, her mental incompetency
was the reason her guardians, who ought to have protected
her, sought to sterilize her and the r eason that the hospital
performed the operation. Not allowing any tolling, even in
an extraordinary situation such as this one, puts
Pennsylvania's statute of limitations at odds with the
objectives that S 1983 and S 1985(3) foster by barring an
individual, especially a member of a protected class, who
was deprived, as in this case, of her ability to bring a claim
through her guardians, from seeking compensation and
deterrence.8 Consequently, the rigidity of the Pennsylvania
_________________________________________________________________

8. In Elizabeth's case, deterrence is of less concern because Pennsylvania
now requires a court proceeding befor e guardians can consent to their
ward's sterilization. See 20 Pa. C.S. A. S 5221(d)(1). See also In re
Terwilliger, 450 A.2d 1376 (Pa. Super . Ct. 1982) (holding sterilization
by
guardian's consent requires court or der).

                                 13
statute of limitations in regard to mental incompetence,
absent a guardian who will protect rather than jeopardize
those rights, directly conflicts with Elizabeth's right as a
mentally retarded person to remedy a violation of her
constitutionally protected rights. We ar e thus not obligated
to apply that state rule.

When the state tolling rules contradict federal law or
policy, in certain limited circumstances we can turn to
federal tolling doctrine. See Heck v. Humphr ey, 997 F.2d
355, 358 (7th Cir. 1993) (recognizing equitable tolling
applicable to S 1983 actions where state limitations
provision conflicts with federal policy); Boos v. Runyon, 201
F.3d 178, 184 (2d Cir. 1999) (r ecognizing that tolling for a
person's mental disability is "highly case-specific" but
declining to apply in instant case); Grant v. McDonnell
Douglas Corp., 163 F.3d 1136, 1138 (9th Cir. 1998)
(permitting federal equitable tolling of a state limitations
period for federal claims in exceptional cir cumstances but
finding none present); Nunnally v. MacCausland, 996 F.2d
1, 4-5 (1st Cir. 1993) (remanding for factual determination
as to whether alleged mental illness justified equitable
tolling). Federal courts may toll statutes of limitations for
federal laws where the plaintiff "in some extraordinary way
has been prevented from asserting his or her rights."
Robinson v. Dalton, 107 F.3d 1018, 1022 (3d Cir. 1997)
(citing Oshiver v. Levin, Fishbein, Sedran & Ber man, 38
F.3d 1380, 1387 (3d Cir. 1994)); see also Bowen v. City of
New York, 476 U.S. 467, 480 (1986) (authorizing equitable
tolling where consistent with congressional intent).9 The
doctrine prevents a party from profiting from its own
wrongdoing. See Oshiver, 38 F.3d at 1388.

Equitable tolling stops the statute of limitations from
running when the date on which the claim accrued has
_________________________________________________________________

9. Equitable tolling is appropriate in thr ee general scenarios: (1) where
a
defendant actively misleads a plaintiff with r espect 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. See Oshiver, 38 F.3d at 1387. We are concerned in this
case with only the second scenario, where extraordinary circumstances
prevent a plaintiff from timelyfiling.

                               14
already passed. See id. Equitable tolling can be applied to
suits brought under the federal civil rights statutes when
the state statute of limitations would otherwise frustrate
federal policy, see, e.g., Heck , 997 F.2d at 358, because as
Wilson recognized, the "adopted" state rule operates "as a
federal rule responsive to the need whenever a federal right
is impaired." Wilson, 471 U.S. at 269. When a plaintiff
requests federal equitable tolling but the facts underlying
that request are disputed or unclear , a court may remand
the case to determine if the facts actually support tolling.
See Nunnally, 996 F.2d at 5-7. If Elizabeth's allegations
prove on remand to be true, we conclude that in this
situation, where a guardian conspir es to deprive a mentally
incompetent person of her constitutional and civil rights,
equitable tolling might be appropriate. Elizabeth would then
be entitled to revive the two-year period that the
Pennsylvania law provides for her to bring her claim. See
Oshiver, 38 F.3d at 1389.

We are not, in remanding this case to the District Court,
holding that a mentally incompetent plaintif f would never
be bound by state statute of limitations provisions in
federal civil rights actions or, alter natively, that she would
be evaluated by a more lenient subjective test. Cf. Robinson,
107 F.3d at 1022-23 (recognizing that a liberal
interpretation of equitable tolling exception would swallow
the rule). In fact, we have previously held that mental
incompetence is not per se a reason to toll the statute of
limitations in federal actions. See e.g., Barr en by Barren v.
United States, 839 F.2d 987 (3d Cir . 1988) (rejecting mental
incompetence as reason to toll statute of limitations under
Federal Tort Claims Act). Where we have permitted
equitable tolling for mental disability in the past, the
plaintiff's mental incompetence motivated, to some degree,
the injury that he sought to remedy. See Eubanks v.
Clarke, 434 F. Supp. 1022 (E.D. Pa 1977) (deciding to
equitably toll the Pennsylvania statute of limitations for a
mentally incompetent plaintiff who was involuntarily
committed for entire limitations period).10
_________________________________________________________________

10. The Eubanks court concluded that it was unreasonable to expect a
mental ward inmate to pursue his claims and thus, denying him his

                               15
The unique facts of Elizabeth's claim distinguish her case
from others where a plaintiff has ar gued for tolling based
on mental incapacity. Generally, under a state law where
there is no equitable tolling for mental incapacity, the
guardian is expected to protect the war d's interests.
Pennsylvania does not permit tolling for mental
incompetency for this very reason:

       [T]he established procedures for the appointment of
       guardians afford sufficient pr otection to individuals
       who are non compos mentis that their claims will be
       instituted within the permissible period and thereby
       diminishes the risk that the rights of incompetents will
       be impaired by our holding that their disability does
       not toll the running of the statute of limitations
       applicable to actions for personal injury.

Walker, 146 A.2d at 291. The unusual aspect of this case,
then, is that the guardians themselves, who should have
been protecting Elizabeth's interests, in fact caused the
injury to her. Thus, her case differs from the more typical
one where a third party injures a mentally incompetent
person and the guardian fails to bring the claim in a timely
fashion. In the latter case, tolling would be inappr opriate
because the guardian had failed to exer cise diligence. We
must reiterate, however, that this is not a case based on
state law for breach of fiduciary trust to r emedy a ward's
injury caused by a guardian. This is a federal civil rights
case seeking a remedy to a member of a pr otected class
who is prevented by state law fr om tolling the statute of
limitations because her guardian failed to pr otect her
precisely because she was mentally retar ded.
_________________________________________________________________

S 1983 action would contradict federal policy by insulating those who
had denied his rights. Eubanks, 434 F . Supp. at 1032-33. Similarly,
while we recognize that Elizabeth's situation is not so extreme, it
nonetheless presents similar concerns because the absence of a
guardian who could advocate Elizabeth's rights made it practically
impossible for her to protect her rights. Thus, failing to equitably toll
the
statute of limitations for Elizabeth would imper missibly allow the
defendants to avoid responsibility for their actions simply through the
passage of time.

                               16
Because of her mental incapacity, Elizabeth claims to
have been unable to appreciate the injury that was done to
her when she was sterilized. (We of course will remand to
determine if that allegation is justified.) Apparently, she has
not been lax in bringing suit because she could not
recognize that there was cause to do so. In fact, she
brought her suit within two years of lear ning from her
gynecologist that she had been sterilized. Absent her
request for a more searching physical examination, she
would not necessarily have had a reason to suspect that
she had been sterilized until a doctor so infor med her
because the effects of a sterilization ar e not always
physically observable.11 Thus, it would appear that she has
acted diligently, at least on the facts she alleges. Permitting
the tolling provisions of the state statute of limitations to
bar her cause of action would frustrate the federal civil
rights laws by barring a remedy to a pr otected person
because the guardian, who under state law should have
sought to vindicate that person, harmed her instead.

In sum, we are not equitably tolling Pennsylvania's
statute of limitations solely because Elizabeth's mental
incompetence prevented her from recognizing her injury
when she was sterilized. Instead, as in Eubanks , we are
tolling it due to the failure of the guar dian system. The
persons, who should have protected Elizabeth because of
her retardation, instead harmed her by having her sterilized
so that she could not procreate. If her allegations prove
true on remand, Elizabeth's claims should pr oceed.12 In this
_________________________________________________________________

11. Tubal ligations do not necessarily af fect a woman's menstrual cycle
or other aspects of her femininity. See L. Elizabeth Bowles, The
Disenfranchisement of Fertile Women in Clinical Trials: The Legal
Ramifications of and Solutions for Rectifying the Knowledge Gap, 45
Vand. L. Rev. 877, 909 (1992) (discussing consequences of tubal
ligation); Estate of C.W., 640 A.2d 427, 432 (Pa. Super. Ct. 1994)
(approving tubal ligation because, among other reasons, it would not
affect C.W.'s menstrual cycle or feelings of femininity).

12. The defendants argue that Elizabeth had enough time after she left
the custody of her father and stepmother to bring her case. We are not
persuaded that, absent a guardian or other r epresentative of her
interests, Elizabeth could be expected to advocate her own interests or
even evaluate what course of action would be in her best interest. Thus,
the fact that she left her parents' home does not, alone, preclude our
application of federal tolling principles.

                               17
instance, equitable tolling would promote Congr ess's intent
in enacting SS 1983 and 1985. It would give Elizabeth the
opportunity she was denied when she was sterilized--
adequate representation of her inter ests -- and give her a
chance to seek a remedy for her injury.

We hold, therefore, that the Pennsylvania statute of
limitations for personal injury claims could, on these
alleged facts, be equitably tolled until the time, perhaps the
gynecologist visit in December 1993, when Elizabeth and
her husband Justin learned, or should have become aware,
that Elizabeth's sterilization procedur e left her permanently
unable to bear children.13 W e will remand this case to the
District Court to determine whether equitable tolling is
appropriate under the standard we set out above.

IV. Loss of Consortium Claim

The Lakes also argue that the lower court decision to
dismiss Justin's consortium claim should be r eversed. We
have plenary review over the District Court's dismissal of
Justin Lake's consortium claim for failure to state a claim.
See Silverman v. Eastrich Multiple Investor Fund, LP, 51
F.3d 28, 30 (3d Cir. 1995).

The Magistrate Judge concluded that Justin's loss
consortium claims were barred on substantive legal
grounds because Elizabeth's injury occurr ed before the
Lakes were married. See Sprague v. Kaplan , 572 A.2d 789
(Pa. 1990) (holding that consortium claims ar e only valid
when a spouse is injured after the couple is married). On
appeal, the Lakes argue that their case is distinguishable
from Sprague because Elizabeth's injury is akin to a
spouse's injury that develops over time. Thus, the discovery
rule should also preserve Justin's derivative loss of
consortium claim.

The Lakes argue that their claim falls within the scope of
Vazquez v. Friedberg, 637 A.2d 300 (Pa. Super. Ct. 1994),
which recognized that when the cause of action underlying
_________________________________________________________________

13. Applying the equitable tolling doctrine to Elizabeth's federal claims,
however, does not mean that we are making any decisions on the merits
of her case.

                               18
a loss of consortium claim is tolled subject to the discovery
rule, the statute of limitations for the loss of consortium
claim is also tolled. See id. at 301-02. In Vazquez, although
the injury that caused her husband's cancer occurr ed
before their marriage, the court permitted the wife to assert
a loss of consortium claim because the cancer that they
discovered after their marriage, and not the initial injury,
was the basis for her claim. See id. The Lakes assert that,
because the harm Elizabeth suffers is her inability to have
children, the loss of consortium claim is based on that
injury rather than the initial sterilization.

We disagree. Even though we are tolling the statute of
limitations for Elizabeth's federal claims, Sprague still bars
Justin's consortium claim on substantive grounds. Once
Elizabeth was sterilized, she was unable to have children.
There is no subsequent harm, as in V azquez, arising from
that initial injury. Moreover, even under the more general
proposition that the loss of consortium claim, like the
underlying federal civil rights claims, should be equitably
tolled, the Lakes' argument also fails. Elizabeth and Justin
were both aware of Elizabeth's sterilization in 1993, before
their marriage in 1994. Therefore, the injury was discovered
before, not after, their marriage, a scenario under which
Sprague precludes suit.

V. Denial of Leave of Amend Complaint

Our final inquiry is whether the District Court should
have allowed the Lakes' motion to amend their complaint a
second time following remand in Lake I. We review the
District Court's decision to deny the Lakes' r equest to
amend for abuse of discretion. See In r e Burlington Coat
Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997)
(citing Lorenz v. CSX Corp., 1 F .3d 1406, 1413-14 (3d Cir.
1993)).

Under the Federal Rules of Civil Procedur e, a plaintiff is
entitled to amend her claim once; courts may grant
subsequent amendments "when justice so requires." Fed.
R. Civ. P. 15(a). While this Rule also r equires that leave to
amend should be "freely given," a district court has the
discretion to deny this request if it is apparent from the

                               19
record that (1) the moving party has demonstrated undue
delay, bad faith or dilatory motives, (2) the amendment
would be futile, or (3) the amendment would pr ejudice the
other party. See Foman v. Davis, 371 U.S. 178, 182 (1962).
While a District Court has substantial leeway in deciding
whether to grant leave to amend, when it refuses this type
of request without justifying its decision, this action is "not
an exercise of its discretion but an abuse of its discretion."
Id.

As the Lakes note, the District Court's October 1998
order offered no explanation for denying their request, even
though the Lakes filed their request for leave to amend on
April 1, 1998. At that time, the Lakes alleged that they had
additional facts that would enable them to withstand the
defendants' motion to dismiss. As we learned at argument,
however, the Lakes did not supply the District Court with
a draft amended complaint, even though they had several
months between the time that the Magistrate Judge issued
his Report and Recommendation (filed March 10, 1998) and
when the District Court issued its order (filed October 30,
1998) during which to draft one. Instead, the Lakes chose
to wait until the District Court issued its or der.

Despite their delay, the Lakes now urge us to reverse the
District Court's decision as an abuse of its discr etion
because the District Court's order failed to explain why it
denied their request to amend. Not providing a justification
for a denial of leave to amend, however, does not
automatically constitute an abuse of discretion as long as
the court's rationale is readily apparent from the record on
appeal. See 3 James Wm. Moore, et al., Moore's Federal
Practice S 15.14[2] at 15-32 (3d ed. 1999), citing Pallotino v.
City of Rio Rancho, 31 F.3d 1023, 1027 (10th Cir. 1994)
(noting that court failed to provide expr ess reason for denial
but only harmless error when appar ent from record).

Moreover, some District Court local rules in our Circuit
require that a plaintiff give a District Court a draft amended
complaint so that it can review the proposed changes to
determine whether "justice requir es" the court to grant
plaintiff's request. See Cindrich, et al., 1 Federal Civil
Procedure Before Trial--3d Circuit 8:285 (1996) (discussing
Local Rule 12(h) for District Court of New Jersey).

                               20
Obviously, without this draft complaint, the District Court
cannot evaluate the merits of a plaintiffs' r equest. Here, as
we stated above, the plaintiff failed to give the District
Court a draft complaint to review. Thus, the court had
nothing upon which to exercise its discr etion.
Consequently, the District Court's lack of findings or
justification do not make its denial of leave to amend
improper, although such a statement would have made our
review more straightforward. See Rolo v. City Investing Co.
Liquidating Trust, 155 F.3d 644, 655 (3d Cir. 1998)
(upholding District Court's denial of leave to amend despite
absence of specific factual findings justifying denial); Kelly
v. Del. River Joint Comm'n, 187 F.2d 93, 95 (3d Cir. 1950)
(affirming lower court's summary refusal to permit
amendment to a claim given plaintiff's failur e to provide
court with a proposed amended complaint).

We conclude that the Lakes' failure to provide a draft
amended complaint would be an adequate basis on which
the court could deny the plaintiff's r equest. See Rolo, 155
F.3d at 655; accord Harris v. City of Auburn, 27 F.3d 1284,
1987 (7th Cir. 1994) (noting that the failur e to provide a
proposed amended complaint demonstrates lack of
diligence or bad faith). Moreover, we ar e inclined to give the
District Court even broader discretion when, as here, the
court has already granted the requesting party an
opportunity to amend its complaint. See, e.g., DCD
Programs, Ltd. v. Leighton, 833 F .2d 183, 186 n.3 (9th Cir.
1987).

VI. Conclusion

For the foregoing reasons, we will vacate the District
Court's order dismissing Elizabeth's federal claims and we
will remand the case to the District Court for further
proceedings consistent with this opinion. W e will affirm the
dismissal of Elizabeth's state personal injury claims, as well
as Justin's loss of consortium claim. Finally, we will affirm
the District Court's decision to deny the Lakes' r equest to
amend their complaint.

                               21
SLOVITER, concurring in part and dissenting in part.

I agree with the majority that Elizabeth Lake's state law
claims are time-barred under the two-year statute of
limitations in effect at the relevant time and that, under
Pennsylvania law in effect at that time, the statute of
limitations did not toll for either minority or incompetence.
I also agree with Judge Roth's analysis concluding that
Elizabeth's mental retardation does not pr ovide a basis for
preserving her claim under Pennsylvania's tolling statute
and that, while it may appear harsh, the state discovery
rule does not afford any relief fr om this conclusion.1
Therefore, I join the judgment enter ed by the majority in
those respects.

However, it is precisely because I agr ee with the
majority's application of Pennsylvania's statute of
limitations as barring Elizabeth Lake's Pennsylvania tort
claim that I respectfully disagree with the majority's
decision not to apply the then-applicable Pennsylvania
tolling rules to bar Lake's federal claim filed under 42
U.S.C. SS 1983 and 1985(3). I believe that the Supreme
Court's decisions in Wilson v. Garcia , 471 U.S. 161 (1985),
and Hardin v. Straub, 490 U.S. 536 (1989), dictate
otherwise.

In Wilson, the Court undertook to r esolve the varying
interpretations by the federal courts of appeals regarding
the appropriate state statute of limitations to be applied to
civil rights actions, a conflict created because the Civil
Rights Act does not include a specific statute of limitations
governing actions brought under #8E8E # 1983 and 1985. The
Court noted that because no suitable federal rule exists,
S 1988 instructs that federal courts should select "the most
appropriate" or "the most analogous" state statute of
limitations to apply to the S 1983 claim as long as it is not
inconsistent with the Constitution and laws of the United
States. However, because of the numer ous and diverse
topics and subtopics encompassed within the constitutional
claims alleged under S 1983, "[a]lmost every S 1983 claim
_________________________________________________________________

1. I also agree with the majority's affir mance of the dismissal of Justin
Lake's loss of consortium claim and the District Court's decision to deny
the Lakes' request to amend their complaint.

                               22
can be favorably analogized to more than one of the ancient
common-law forms of action, each of which may be
governed by a different statute of limitations." Wilson, 471
U.S. at 272-73. The Court opined that Congress would not
have sanctioned an interpretation of the statute that would
lead to applying different statutes of limitations to the
various S 1983 claims arising in the same state. After
considering the issue, the Court adopted the
"characterization of all S 1983 actions as involving claims
for personal injuries." Id. at 279.

The Court selected one statute of limitations to be applied
for this purpose in order to minimize, if not eliminate, "the
conflict, confusion, and uncertainty concer ning the
appropriate statute of limitations to apply to this most
important, and ubiquitous, civil rights statute." Id. at 266.
Thereafter, in Hardin, the Court held that a federal court
applying a state statute of limitations should give effect as
well to the state's provision for tolling that statute of
limitations. 490 U.S. at 539. The Court repeated its earlier
statement in Wilson, 471 U.S. at 269 n.17, that "[i]n
virtually all statutes of limitations the chr onological length
of the limitation period is interrelated with provisions
regarding tolling, revival, and questions of application."
(quoting Johnson v. Railway Express Agency, Inc., 421 U.S.
454, 464 (1975) (emphasis added)).

I am concerned that the holding of the majority would
detract from the very certainty the Court sought in Wilson.
Thus, under Wilson and Hardin , to determine the statute of
limitations, one need only examine the applicable state's
personal injuries statute of limitations and deter mine
whether that state would permit tolling under those
circumstances. Under the majority's rule, even though the
state would not have permitted tolling under its statute of
limitations, tolling may be permitted in aS 1983 suit if, in
the court's view, tolling would comport with the underlying
purposes of the civil rights statute. Not only is this
inconsistent with the important goals of unifor mity and
certainty in application of the statute of limitations
established by the Supreme Court but it is also
inconsistent with the Court's reliance on the state to
determine whether and when tolling should be permitted.

                               23
See Johnson, 421 U.S. at 464 ("In borr owing a state period
of limitation for application to a federal cause of action, a
federal court is relying on the State's wisdom in setting a
limit, and exceptions thereto, on the pr osecution of a
closely analogous claim.").

In Wilson, the Court reasoned that tort actions constitute
a major part of the volume of civil litigation in the state
courts, and concluded that: "It is most unlikely that the
period of limitations applicable to such claims ever was, or
ever would be, fixed in a way that would discriminate
against federal claims, or be inconsistent with federal law in
any respect." 471 U.S. at 279. Accor dingly, application of
the state's personal injuries statute of limitations
"minimizes the risk that the choice of a state statute of
limitations would not fairly serve the federal inter ests
vindicated by S 1983." Id. Pennsylvania ultimately did allow
tolling for mental disability; however, the majority would
allow tolling a federal civil rights action whenever the
federal court, not the state, determines that tolling should
be applied.

The effect of the majority's holding is to open the
possibility of damage actions under the Civil Rights Act
against individuals more than 23 years after the event at
issue. This is again inconsistent with the W ilson Court's
expressed concern with allowing a federal cause of action to
be "brought at any distance of time," noting that "[j]ust
determinations of fact cannot be made when, because of
the passage of time, the memories of witnesses have faded
or evidence is lost." Id. at 271 (quotation omitted).

Although I appreciate the empathy for Lake that
underlies this portion of the majority's decision, for the
reasons set forth I feel compelled to dissent.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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