                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-7-2006

Lyons v. Emerick
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1158




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Recommended Citation
"Lyons v. Emerick" (2006). 2006 Decisions. Paper 772.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/772


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DPS-253                                      NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT

                                NO. 06-1158
                             ________________

                               ERIC LYONS,

                                             Appellant

                                        v.

               LT. JOSEPH EMERICK; CAPT. JAMES SKINDELL;
          DET. G. MCSHANE; SPECIAL AGENT SHAWN VAN SLYKE;
                OFFICER J. DIBELLO; L.P.N. CATHY LEOPOLD;
            BUSINESS OWNER GEORGE WELLSBY The Car Corner;
                           OFFICER MCLAUGHLIN

                _______________________________________

                On Appeal From the United States District Court
                    For the Western District of Pennsylvania
                           (D.C. Civ. No. 03-cv-00075)
                 District Judge: Honorable Sean J. McLaughlin
                _______________________________________

                  Submitted For Possible Summary Action
                Under Third Circuit L.A.R. 27.4 and I.O.P. 10.6
                                June 22, 2006

  Before: FUENTES, VAN ANTWERPEN AND CHAGARES, CIRCUIT JUDGES

                             (Filed July 7, 2006)
                         _______________________

                                OPINION
                         _______________________
PER CURIAM

       Eric Lyons appeals from the District Court’s order of summary judgment. Because

Lyons’ appeal presents no substantial question, we will grant the Appellees’ motions for

summary affirmance.

       On February 21, 2001, Eric Lyons brought his car to be serviced at The Car

Corner, a garage operated by defendant George Wellsby. According to Lyons’ amended

complaint, instead of servicing his car, Wellsby searched its interior and then called the

police. A few hours later, Lyons agreed to accompany defendants Lieutenant Joseph

Emerick, Captain James Skindell, and Detective G. McShane of the Erie County Police

Department, and Special Agent Shawn Van Slyke of the Federal Bureau of Investigation,

to the local police station to answer questions regarding the rape of an eight-year old girl.

Lyons claims that, after he had answered their questions, the officers fingerprinted and

photographed him against his will. He claims that Skindell and Van Slyke punched him

in the stomach and face in order to get him to comply with their orders to pose for the

photograph. The officers then, along with defendant Officer McLaughlin of the Erie

Police Department, drove Lyons to St. Vincent Health Center where they were joined by

defendant Officer J. DiBello.

       At St. Vincent, defendant Cathy Leopold, the Forensic Nurse Examiner, took a

blood sample and a sample of Lyons’ pubic hair. According to Lyons, when Leopold

began to remove his pants to obtain a sample of his pubic hair, he announced that it

violated his religious beliefs to be naked in front of a female and became agitated. At this

                                              2
point, Lyons claims, the officers beat him into submission so that Leopold was able to

obtain the necessary samples. Lyons attempted to suppress the samples and photographs

at trial, and failed. He was eventually convicted for the kidnaping, rape, and attempted

murder of the eight-year old.

       On February 25, 2003, Lyons filed a pro se civil rights complaint in the United

States District Court for the Western District of Pennsylvania. In his complaint Lyons

claimed that defendant Wellsby’s search of his car, his seizure at the police station and

the subsequent taking of hair and blood samples were unreasonable, in violation of his

rights under the Fourth and Fourteenth Amendments. He also claimed that the taking of

his blood and pubic hair samples violated his religious freedom guaranteed by the First

and Fourteenth Amendments. Finally, he claimed that, in the course of their

investigation, Van Slyke and the Erie County police officers used excessive force.

       The defendants moved to dismiss the suit, alleging, inter alia, that Lyons’ claims

were barred by the statute of limitations.1 However, the District Court allowed the suit to

proceed leaving open the possibility that Lyons was eligible for equitable tolling. On

September 24, 2005, the District Court adopted the Magistrate Judge’s Recommendation

granting defendants’ summary judgment on Lyons’ First Amendment and unreasonable

search and seizure claims based on Heck v. Humphrey, 512 U.S. 477 (1994), and

collateral estoppel. On November 15, 2005, the District Court adopted the Magistrate


   1
    Defendant Wellsby answered pro se, and did not assert any affirmative defenses, but
the statute of limitations analysis applies to the claim against him as well.

                                             3
Judge’s Recommendation granting summary judgment to the defendants on the remaining

excessive force claims. Because we find that all of Lyons’ claims are clearly barred by

the applicable statute of limitations, we will affirm.2

        We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the

District Court’s grant of summary judgment is plenary, and we apply the same standard as

that applied by the District Court. Saldana v. Kmart Corp., 260 F.3d 228, 231 (3d Cir.

2001). Summary judgment is proper only if there is no genuine issue of material fact and

if, viewing the facts in the light most favorable to the nonmoving party, the moving party

is entitled to judgment as a matter of law. Id. at 232. We may affirm the District Court

on any ground supported by the record. Tourscher v. McCullough, 184 F.3d 236, 239 (3d

Cir. 1999).

       The statute of limitations for bringing a civil rights suit under § 1983 is the same as

the state statute of limitations for bringing a personal injury action. See Kost v.

Kozatkiewicz, 1 F.3d 176, 190 (3d Cir. 1993). In Pennsylvania, that period is two years.

Id.; see 42 Pa. CON. STAT. § 5524. The statute begins to run from the date the plaintiff

became aware that his constitutional rights were violated. Sameric Corp. of Delaware,



   2
    We need not decide whether Heck bars Lyons’ unreasonable search and seizure
claims in this case. See Gibson v. Superintendant of New Jersey Department of Law and
Public Safety- Division of State Police, 411 F.3d 427, 449 (3d Cir. 2005) (holding that a
determination whether Heck applies to a Fourth Amendment claim requires a case-by-
case fact-based inquiry). If Heck applies, then Lyons’ Fourth Amendment claims do not
accrue until his conviction is invalidated. In that case, too, his claims would be properly
dismissed. Either way, the result is the same.

                                               4
Inc. v. City of Philadelphia, 142 F.3d 582, 599 (3d Cir. 1998). Because Lyons became

aware of the alleged constitutional violations on February 21, 2001, the limitations period

for filing his suit expired on February 22, 2003, three days before he delivered his

complaint to prison authorities for mailing.

       Lyons claims that he is entitled to equitable tolling because prison authorities

prevented him from bringing his claims within the limitations period. He claims that

prison authorities’ excessive delay in delivering him his prison account statement for the

purpose of filing his application for in forma pauperis prevented his compliance with the

statute of limitations. His complaint was complete by February 12, 2003, ten days before

the deadline to file, when he requested his prison account statement. It was during the

thirteen days that Lyons waited for prison authorities to furnish him with his account

statement that the limitations period expired.

       In order to avoid dismissal of his complaint for failure to comply with § 1983's

statute of limitations, Lyons must show that the limitations period should be equitably

tolled. Generally, like the statute of limitations, tolling rules in § 1983 actions are taken

from the rules of the forum state, unless they conflict with federal law or policy. See 42

U.S.C. § 1988; Hardin v. Straub, 490 U.S. 536, 539 (1989). The tolling rules for personal

injury actions in Pennsylvania are stricter than their federal analogue. See Lake v.

Arnold, 232 F.3d 360, 370 (3d Cir. 2000). Absent fraud or concealment, judicial




                                               5
extensions of the statute of limitations are expressly forbidden.3 See 42 PA. CONST. ANN.

§ 5504(a) (“[T]he time limited by this chapter shall not be extended by [judicial] order,

rule or otherwise”); see also Aivazoglou v. Drever Furnaces, 613 A.2d 595, 598 (Pa.

Super. 1992).

       Lyons would find no relief even under the more lenient federal equitable tolling

rules. Federal statutes of limitations may sometimes be equitably tolled “where the

plaintiff in some extraordinary way has been prevented from asserting his or her rights.”

Oshiver v. Levin, Fishbein, Sedran &Berman, 38 F.3d 1380, 1387 (3d Cir. 1994).

Further, in order to be eligible for equitable tolling, a plaintiff must exercise “reasonable

diligence in investigating and bringing [his or her] claims.” New Castle County v.

Halliburton NUS Corp., 111 F.3d 1116, 1126 (3d Cir. 1998). The fact that Lyons missed

his deadline for filing suit while he was waiting on prison officials to respond to his

request for his account statement does not justify the tolling of the statute of limitations in

this case. Despite the fact that Lyons had two years to file his complaint, he waited until

the last minute when his schedule was derailed by a delay for the paperwork necessary to

file his complaint in forma pauperis. Lyons did not exercise reasonable diligence in

pursuing his claims and, thus, is not eligible for equitable tolling. See Pace v.




   3
    The only exception is the discovery rule, which tolls the limitations period during the
time that an injury is undiscoverable through due diligence. See e.g. Dalrymple v.
Brown, 549 Pa. 217, 223 (1997). However, the discovery rule plainly provides no relief
to Lyons, whose constitutional violations were apparent at the time of injury.

                                               6
DiGuglielmo, 544 U.S. 408, 419 (2005) (“Had petitioner advanced his claims within a

reasonable time of their availability, he would not now be facing any time problem.”)

       In short, upon consideration of the submissions in this case, we conclude that his

appeal presents us with no substantial question. See Third Circuit L.A.R. 27.4 and I.O.P.

10.6. Accordingly, we grant the Appellees’ motion for summary affirmance and will

affirm the District Court’s order.




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