                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-19-2005

Buchholz v. Mid W Intermediate
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1460




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005

Recommended Citation
"Buchholz v. Mid W Intermediate" (2005). 2005 Decisions. Paper 1335.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1335


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                   NOT PRECEDENTIAL

           UNITED STATES COURT OF APPEAL
               FOR THE THIRD CIRCUIT


                         No. 04-1460


                 RENEE BUCHHOLZ;
             ROBERT BUCHHOLZ, her husband

                              v.

MIDWESTERN INTERMEDIATE UNIT IV; ANGELO PEZZUOLO;
   THOMAS MAJERSKY; MONITEAU SCHOOL DISTRICT;
     MICHAEL A. PANZA; ANTHONY MONTLEONE;
         RICHARD CAVETT; CECELIA YAUGER;
 DENNIS DURNELL; JACQULINE DURNELL, husband and wife

                       Renee Buchholz,

                                   Appellant


        On Appeal from the United States District Court
           for the Western District of Pennsylvania
                 (D.C. Civil No. 01-cv-01801)
          District Judge: Hon. Donetta W. Ambrose


        Submitted Pursuant to Third Circuit LAR 34.1(a)
                        April 5, 2005

    BEFORE: BARRY, AMBRO and COWEN, Circuit Judges

                    (Filed: April 19, 2005)


                          OPINION
COWEN, Circuit Judge.

       Renee Buchholz (“Buchholz” or “Plaintiff”) appeals from the District Court’s

order of January 21, 2004, denying Plaintiff’s motion for a new trial following a jury

verdict in favor of Midwestern Intermediate Unit IV (“Intermediate Unit”) and Thomas

Majersky (collectively “Defendants”). Buchholz brought this action pursuant to 42

U.S.C. § 1983 on September 26, 2001, alleging that Defendants violated her substantive

due process right to bodily integrity under the state created danger doctrine. The jury

found Plaintiff’s claims barred by the statute of limitations. On appeal, Plaintiff contends

that (1) the District Court erred in instructing the jury on the statute of limitations for her

§ 1983 claims; and (2) the jury’s verdict finding her claims barred by the statute of

limitations was against the weight of the evidence. We have jurisdiction to review the

final order of the District Court pursuant to 28 U.S.C. § 1291. We will affirm.

                                               I.

       As we write exclusively for the parties, we briefly review the pertinent facts.

Intermediate Unit employed Plaintiff as a Licensed Professional Nurse (“LPN”) in 1993.

Among her responsibilities was providing care to special education children, including

Ryan Durnell, a teen-aged, moderately mentally retarded Downs Syndrome child. Ryan

commenced physical attacks on Plaintiff in the 1997-98 school year, and Plaintiff

documented these attacks in reports submitted to the appropriate supervisor. She did not

document any aggressive incidents in the 1998-99 school year.



                                               2
       Preceding the 1999-2000 school year, Ryan was assigned to the Life Skills Class at

Moniteau High School, taught by Patricia Lewis. Plaintiff accepted a position as an

LPN/Aide in the Life Skills classroom at Moniteau High School in August 1999. At the

time of her interview for the position, Plaintiff advised Defendant Majersky of Ryan’s

disruptive behaviors. Mr. Majersky has been the Intermediate Unit’s Supervisor of

Special Education since 1991.

       Plaintiff’s responsibilities initially involved working with all the students in the

Life Skills Class. As part of her duties, Plaintiff brought Ryan to the nurse’s office for

colostomy care. On September 10, 1999, September 13, 1999, and September 15, 1999,

Ryan ran down the hallway. Plaintiff gave chase and physically apprehended Ryan. She

filed incident reports on each occasion, and notified her supervisor, Mr. Majersky, who

met with Mrs. Lewis and the school psychologist. On September 16, 1999, Ryan tackled

Plaintiff to the ground and attempted to choke her with her ID necklace. He ran down the

hallway into the metal shop, pushed Plaintiff into a wooden table and threw a long-

handled wooden paper cutter across the room. In response, on September 17, 1999, Mr.

Majersky met with and directed Plaintiff to write a report of the incident. He interviewed

classroom staff and asked several staff members to prepare written statements. He told

Plaintiff not to chase Ryan, as that exacerbated the situation. Several days later, Mrs.

Lewis, the Life Skills teacher, presented Plaintiff with a schedule that she had prepared at

the behest and approval of Mr. Majersky. This schedule, which was implemented on



                                              3
September 21, 1999, required that Plaintiff work one-on-one with Ryan for the entirety of

the school day. Mr. Majersky had the schedule prepared in an attempt to create a more

pleasing environment for Ryan and strengthen Plaintiff’s authority over him. Ryan’s

activities were scheduled in fifteen minute increments. Mr. Majersky directed Plaintiff to

hold Ryan at the wrist at all times outside the classroom, to prevent injury in the event he

“plopped,” and commanded that Ryan not be permitted in the hallways when other

students were present.

       On September 23, 1999, upon learning that Ryan “plopped” and refused directives

to get up two days earlier, Mr. Majersky recommended that Ryan be transported through

the school by wheelchair, and further directed Mrs. Lewis to keep Ryan’s activities in the

classroom as much as possible.

       On September 28, 1999, Plaintiff complained of numbness in her left side and

neck and shoulder pain. She left work early. Plaintiff stayed home on September 29,

1999, and returned to work on September 30, 1999.

       On September 30, 1999, Ryan attacked Plaintiff while they were in the nurse’s

office cleaning cots. Specifically, he smacked her head with his hand, grabbed her

around her waist and lifted her up off her feet, and attempted to slam her body against the

wall of the room. That an altercation between Ryan and Plaintiff occurred on that date is

not disputed. Plaintiff has not worked for Intermediate Unit since September 30, 1999.




                                              4
Plaintiff has since visited various doctors. She filed the instant complaint on September

26, 2001.

                                               A.

       The District Court instructed the jury as follows:

              Defendants assert two affirmative defenses. And, again, as I told you
     earlier, these must be proven by the defendants by a preponderance of the
     evidence.
              One is the statute of limitations. The other is qualified immunity. The
     first, the statute of limitations, is a law that provides that a claim is barred if a
     plaintiff does not bring it within a prescribed period. In this case, the statute
     of limitations is two years. This case was brought -- it was filed in this Court
     on September 26, 2001. Thus if you find that none of defendants’ conduct
     occurred after September 26, 1999, and if you find that plaintiff was not
     injured after September 26, 1999, then you must find that plaintiff’s claims
     are barred by the statute of limitations.
              If you find, however, that at least one aspect of defendants’ conduct
     occurred on or after September 26, 1999, then you must consider plaintiff’s
     continuing violation theory. The continuing violation doctrine is an equitable
     exception to the timely filing requirement. Under the continuing violation
     theory, when a defendant’s conduct is part of a continuing practice, an action
     is timely so long as the last act evidencing the continuing practice falls within
     the limitations period.
              Thus, to establish a continuing violation, plaintiff must prove by a
     preponderance of the evidence that at least one act occurred within the filing
     period, that is, on or after September 26, 1999, and that the action or inaction
     alleged was more than the occurrence of isolated or sporadic acts.

(App. at 19-20.)

       Buchholz asserts that this instruction erroneously permitted the jury to find that all

attacks perpetrated on her fell beyond the statute of limitations where, in fact, it was

undisputed that the last attack occurred on September 30, 1999. She claims that the

District Court should have instructed the jury that the statute of limitations did not bar her

                                               5
claim to the extent it is based on this attack. Therefore, she argues, the jury could have

properly been left to determine whether the earlier attacks levied against here were a part

of a continuing course of violations.

       We ordinarily evaluate jury instructions under an abuse of discretion standard.

United States v. Fishbach and Moore, Inc., 750 F.2d 1183, 1195 (3d Cir. 1984). A

district court necessarily abuses its discretion, however, if its instruction “misstates the

proper legal standard.” As such, we exercise plenary review over a jury instruction

challenged on that basis. Hopp v. City of Pittsburgh, 194 F.3d 434, 440 (3d Cir. 1999).

Once the court has given an instruction, we must “determine whether the charge, taken as

a whole and viewed in the light of the evidence, fairly and adequately submits the issues

in the case to the jury.” Ayoub v. Spencer, 550 F.2d 164, 167 (3d Cir. 1977). We will

only reverse the district court if its instruction was capable of confusing and thereby

misleading the jury. Fishbach, 750 F.2d at 1195. Consequently, we need not reverse if

we conclude that the “jury would have reached the same result had it been instructed

according to the correct legal standard.” Hopp, 194 F.3d at 440 (internal quotation marks

and citation omitted).

       Plaintiff’s § 1983 claim is subject to a two-year statute of limitations. See Wilson

v. Garcia, 471 U.S. 261, 276-78 (1985) (holding that in actions brought under 42 U.S.C.

§ 1983, federal courts apply the state’s statute of limitation for personal injury); Smith v.

City of Pittsburgh, 764 F.2d 188, 192, 194 (3d Cir. 1985) (holding that a two-year statute



                                               6
of limitations period applies to all § 1983 actions brought in Pennsylvania). Federal law

governs the accrual of a § 1983 claim. Montgomery v. De Simone, PTL, 159 F.3d 120,

126 (3d Cir. 1998). The limitations period begins to run from the time when “the plaintiff

knows or has reason to know of the injury which is the basis of the section 1983 action.”

Id. (quoting Genty v. Resolution Trust Corp., 937 F.2d 899, 919 (3d Cir. 1991)).

       The District Court’s instructions below did not misstate the proper legal standard

and adequately and clearly submitted the statute of limitations issues to the jury. First, we

observe that the District Court’s instructions inured to Plaintiff’s benefit. Before finding

that her § 1983 claims were barred, the jury was required to find (1) that none of

defendants’ conduct occurred after September 26, 1999, and (2) that Plaintiff was not

injured after September 26, 1999. The District Court’s instructions operated to deem

Plaintiff’s claim timely so long as any element of her state created danger claim fell

within the requisite limitations period. Therefore, had the jury determined that

Defendants’ conduct caused Plaintiff to sustain injuries after September 26, 1999--the

gravamen of Plaintiff’s statute of limitations argument--they would have been compelled

to find that Plaintiff’s claims were timely. As explained in Part IB., infra, the jury’s

verdict to the contrary is supported by sufficient evidence.

       Next, the District Court’s instructions accorded with the principle that a § 1983

claim accrues when a plaintiff knew or should have known of the basis for the action.

See Montgomery, 159 F.3d at 126. The elements of a substantive due process claim



                                              7
predicated on a state created danger theory are (1) the harm ultimately caused was

foreseeable and direct; (2) the state actors acted in willful disregard for the safety of the

plaintiff; (3) there existed some relationship between the State and the plaintiff; and (4)

the state actors used their authority to create an opportunity that otherwise would not have

existed for the third party to cause harm. Brown v. Penn. Dep’t of Health Emergency

Servs. Training Inst., 318 F.3d 473, 479 (3d Cir. 2003). Here, the facts relied upon to

establish these elements were all present prior to September 26, 1999. To the extent

Defendants engaged in any actionable conduct, it occurred on or before September 26,

1999. Ryan’s attacks on Plaintiff likewise commenced before this date. As such,

Plaintiff’s § 1983 bodily integrity claim accrued over two years before she filed a

complaint.

       Last, turning to the District Court’s instructions on continuing violations,

Plaintiff’s argument inappropriately conflates the actions of Defendants with the actions

of a private actor, Ryan. Ryan’s various attacks on Plaintiff represented the result or

effect of Defendants’ allegedly actionable conduct. As such, the attack of September 30,

1999, cannot serve as a basis for application of the continuing violations doctrine. Under

the continuing violations doctrine, which operates as an “equitable exception to the timely

filing requirement,” West v. Phila. Elec. Co., 45 F.3d 744, 754 (3d Cir. 1995), a federal

cause of action based upon the defendant’s continuing conduct is timely if the last act

evidencing that continuing practice falls within the appropriate limitations period. See



                                               8
Sameric Corp. of Del., Inc. v. City of Philadelphia, 142 F.3d 582, 599 (3d Cir. 1998).

Significantly, the focus of the inquiry is on the affirmative acts of the defendant. Id.;

Cowell v. Palmer Township, 263 F.3d 286, 293, 294 (3d Cir. 2001). Plaintiff premises

her continuing violations theory on the September 30th incident. She does not, however,

point to any affirmative acts or omissions of Defendants that occurred on this date, or

indeed, on any date on or after September 26, 1999. The existence of a continuing

violation hinges upon “the time [at which] the discriminatory acts [took place], not upon

the time at which the consequences of the acts became most painful.” Delaware State

College v. Ricks, 449 U.S. 250, 258 (1980) (emphasis in original) (internal citations

omitted); see also Ocean Acres Ltd. P’ship v. Dare County Bd. of Health, 707 F.2d 103,

106 (4th Cir. 1983) (“A continuing violation is occasioned by continual unlawful acts, not

continual ill effects from an original violation.”). In other words, Ryan’s actions at most

constituted an “ill effect” of Defendants’ actions, and thus alone cannot constitute a basis

for applying the continuing violations doctrine.

       Accordingly, the District Court did not abuse its discretion or commit any

reversible error in instructing the jury.

                                              B.

       Plaintiff next contends that the jury verdict in favor of Defendants on the statute of

limitations issue is against the weight of the evidence, because it was undisputed that

Ryan assaulted her on September 30, 1999, which is a date falling within the preceding



                                              9
two years of when she filed her complaint. Our review of the jury’s verdict on this issue

is limited to ascertaining whether sufficient evidence existed to support the jury’s

conclusion. See Van Buskirk v. Carey Canadian Mines, Ltd., 760 F.2d 481, 487 (3d Cir.

1985).

         A review of the record reveals ample evidence from which the jury could reach the

conclusion that Plaintiff’s claims did not fall within the limitations period. That

Defendants did not engage in any actionable wrong in the two years preceding September

26, 2001, is clearly evidenced in the record. In addition, sufficient evidence supports a

finding that Plaintiff’s injuries did not stem from the altercation of September 30, 1999.

For example, Plaintiff did not indicate in her report submitted in connection with this

incident that she suffered injury, even though the report specifically requested that

information. An EEG and CAT scan of Plaintiff’s brain conducted several days after

September 30th were normal. Moreover, each of Plaintiff’s medical witnesses testified

on cross-examination that they could not attribute Plaintiff’s injuries to any one of the

September incidents. Indeed, the record contains evidence that Plaintiff experienced

serious symptoms before any of the 1999 incidents with Ryan. In short, a jury could

reasonably conclude on this record that Plaintiff’s claims did not fall within the

limitations period.




                                             10
       For the foregoing reasons, the judgment of the District Court entered on January

21, 2004, will be affirmed.




                                           11
