                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-5-2007

Gera v. Atty Gen PA
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3601




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CLD-45                                                       NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT


                                   No. 07-3601


                                JOHN M. GERA,

                                                 Appellant

                                         v.

 COMMONWEALTH OF PENNSYLVANIA, ATTORNEY GENERAL; BOROUGH
  OF SHENANDOAH; JOSEPH L. PALUBINSKY; MICHAEL A. O’PAKE; CHIEF
  MATTHEW R. NESTOR; JAMIE R. GENNARINI; ESQUIRE FRANK R. CORI,
              Former District Attorney of Schuylkill County



                  On Appeal from the United States District Court
                      for the Middle District of Pennsylvania
                            (D.C. Civ. No. 07-cv-00764)
                   District Judge: Honorable James M. Munley


Submitted for Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B) or Summary Action
                   Under Third Circuit L.A.R. 27.4 and I.O.P. 10.6
                                 November 8, 2007


             Before: AMBRO, FUENTES and JORDAN, Circuit Judges

                            (Filed: December 5, 2007 )



                                    OPINION
PER CURIAM

       This is an appeal from the District Court’s dismissal of John Gera’s complaint.

For the following reasons, we will summarily affirm the District Court’s order. See Third

Circuit L.A.R. 27.4 and I.O.P. 10.6.

       On October 18, 2004, Appellant Gera attended a meeting of the Shenandoah

Borough Council. At that meeting, he asked the council if he needed a permit to protest

in the Borough. Gera repeated his question at a Borough Council meeting on November

15, 2004. Gera contends that he was “well behaved” at the meeting. He also alleges that

at the meeting Borough Solicitor Michael O’Pake threatened to punch him in the face.

On December 10, 2004, a friend informed Gera that a newspaper story had reported he

had been charged with two counts of “persistent disorderly conduct” and two counts of

disrupting meetings. According to the article in the Pottsville Republican & Herald, Gera

disrupted the Council meetings with loud and belligerent behavior towards officials.

Police asserted that despite repeated warnings to stop, Gera continued to disrupt the

meetings. These officials also claimed that Gera’s behavior prevented the council from

tending to business. Gera alleges that none of these claims by the police is true.

       On December 14, 2004, Gera received a criminal complaint charging him with

disrupting public meetings and a summons to a preliminary hearing. After repeated

continuances, Gera appeared at a preliminary hearing at which all charges against him

were withdrawn.

       On April 24, 2007, Gera filed a nine-count complaint in the District Court pursuant

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to 42 U.S.C. § 1983 alleging a federal civil rights claim as well as various state claims

related to the incident at the Council meeting and the newspaper article. The District

Court addressed each claim separately and dismissed the entire complaint as frivolous

pursuant to 28 U.S.C. § 1915(e). Gera filed a motion for reconsideration which the

District Court denied on October 19, 2007. Gera appeals both the original dismissal and

the denial of reconsideration and also requests that we appoint him counsel.

       We will exercise plenary review over the District Court’s dismissal of Gera’s

complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). See Tourscher v. McCullough 184

F.3d 236, 240 (3d Cir. 1999).

       The District Court dismissed several of Gera’s claims as barred by the

Pennsylvania statute of limitations. See 42 P A. C ONST. S TAT. A NN. § 5524(7)

(establishing a two-year statute of limitations for “any . . . action or proceeding to recover

damages for injury to person or property which is founded on negligent, intentional, or

otherwise tortious conduct”); see also O’Connor v. City of Newark, 440 F.3d 125, 126

(3d Cir. 2006) (section 1983 actions are governed by the personal injury statute of

limitations of the state in which the cause of action accrued). Federal law governs the

accrual of section 1983 claims. See e.g., Genty v. Resolution Trust Corp., 937 F.2d 899,

919 (3d Cir. 1991). The statute of limitations begins to run “when the plaintiff knows or

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

       We agree with the District Court’s reasoning that the statute of limitations on

Gera’s slander and defamation claim began to run on the publication of the newspaper

                                             -3-
article in December 2004 and expired in December 2006. The same reasoning also bars

Gera’s “terroristic threats” claim, arising from Appellee O’Pake’s alleged threats at the

November 14, 2004 Council meeting. Further, any false arrest claims stemming from the

November meeting and subsequent legal proceedings are barred by the statute of

limitations, even if Gera alleges that he had no knowledge of the identity of the arresting

officer. See Wallace v. Kato, 127 S.Ct. 1091, 1095 (2007); Rolax v. Whitman, 175

F.Supp.2d 720, 728 (D.N.J. 2001).

       Gera’s claim of malicious prosecution against the Attorney General and/or the

District Attorney is also meritless. In initiating a prosecution, the prosecutor is immune

from a civil suit for damages under § 1983. See Imbler v. Pachtman, 424 U.S. 409, 431

(1976). Gera also alleges that the Pennsylvania Attorney General and District Attorney

Cori conspired to deprive him of his constitutional rights. Since Gera’s conspiracy claims

do not appear to be based in fact, but merely upon his own suspicion and speculation, we

hold that the District Court did not err in dismissing them as legally frivolous. See Young

v. Kann, 926 F.2d 1396, 1405 (3d Cir. 1991).

       It is unclear what claims, if any, Gera alleges against Matthew R. Nestor, the Chief

of Police for the Borough. The District Court construed the claim as a respondeat

superior action, arising presumably from Nestor’s failure to supervise a police officer

who brought an unsubstantiated claim against Gera. Respondeat superior liability is also

generally unavailable under section 1983. See Baraka v. McGreevey, 481 F.3d 187, 210

(3d Cir. 2007). In his motion for reconsideration Gera alleges that on May 6, 2004,

                                             -4-
Nestor criminally trespassed on his land. This claim, even if it had been properly pleaded

in the original complaint, is barred by the applicable statute of limitations. See 42 P A.

C ONST. S TAT. A NN. § 5524(4).

       Similarly, Gera also does not allege that Joseph L. Palubinsky, an employee of the

Borough, personally participated in the alleged conduct that gave rise to the complaint.

See e.g., Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (defendant in a civil

rights action must have personal involvement in the alleged wrongs; liability cannot be

predicated solely on the operation of respondeat superior).

       We also conclude that the District Court correctly construed Gera’s negligence

claim against the Borough as a failure-to-train claim. A supervising authority may be

liable under § 1983 for failing to train police officers when the failure to train

demonstrates deliberate indifference to the constitutional rights of those with whom the

officers may come into contact. See City of Canton v. Harris, 489 U.S. 378, 388 (1989).

We adopt the District Court’s reasoning that Gera’s claim fails because he did not and

cannot identify a failure to provide specific training that has a causal nexus with his

injuries. See Reitz v. County of Bucks, 125 F.3d 139, 145 (3d Cir. 1997).

       Lastly, Gera’s assertion in his motion for reconsideration that dismissal of his

complaint pursuant to 28 U.S.C. § 1915(e) is a violation of his constitutional rights is

meritless. See Abdul-Akbar v. McKelvie 239 F.3d 307, 316 (3d Cir. 2001) (en banc)

(“[t]he ability to proceed I.F.P. is not a constitutional right”).

       Accordingly, because this appeal presents us with no substantial question, we will

                                               -5-
summarily affirm the decision of the District Court. See Third Circuit L.A.R. 27.4 and

I.O.P. 10.6. In light of our disposition, Appellant’s motion for appointment of counsel is

denied. See Tabron v. Grace, 6 F.3d 147, 155-56 (3d Cir. 1993).




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