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


8-28-2007

LeBar v. Bahl
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4986




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Recommended Citation
"LeBar v. Bahl" (2007). 2007 Decisions. Paper 532.
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ALD-338                                                             NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                        NO. 06-4986
                                     ________________

                                    DAYTON LEBAR,
                                            Appellant

                                               v.

      SAL P. BAHL; SHARA SAVIEKIS; STACIE GILL; BONNIE E.L. MYLES
                   ____________________________________

                     On Appeal From the United States District Court
                         For the Middle District of Pennsylvania
                               (D.C. Civ. No. 02-cv-02380)
                       District Judge: Honorable James M. Munley
                      _____________________________________

         Submitted For Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
                                    August 9, 2007
         Before: SLOVITER, CHAGARES AND COWEN, CIRCUIT JUDGES

                                 (Filed: August 28, 2007)
                                _______________________

                                       OPINION
                                _______________________

PER CURIAM

       Appellant, Dayton LeBar, appeals pro se from an order of the United States

District Court for the Middle District of Pennsylvania granting summary judgment against

him in his civil rights suit. For essentially the reasons set forth by the District Court, we

conclude that the appeal is lacking in legal merit and will dismiss it pursuant to 28 U.S.C.
§ 1915(e)(2)(B).

       As this is the second time that this matter has come before the Court, we only

briefly recount the facts necessary to dispose of the instant appeal. On December 31,

2002, LeBar filed a complaint pursuant to 42 U.S.C. § 1983 against the Monroe County

Children and Youth Services Department and various employees of that agency (29

defendants in all), alleging that the defendants violated his Fourteenth Amendment

substantive and procedural due process rights, invaded his right to privacy, failed to

provide him with sex offender treatment, breached his right to confidentiality, defamed

his character, and negligently handled his case when the agency removed his daughter

from his home and placed her in protective custody amid allegations of sexual abuse.

       Subsequent to LeBar’s filing of an amended complaint, the District Court entered

an order on February 18, 2004 granting defendants’ motion to dismiss all claims against

them for failure to state a claim upon which relief could be granted. On appeal, we

affirmed in part and reversed in part the District Court’s judgment. See LeBar v. Monroe

County Children and Youth Services, et al., C.A. No. 04-1492, slip op. (3d Cir. February

9, 2005). In particular, we affirmed the District Court’s dismissal of all claims save

LeBar’s procedural due process claim. “Without commenting on the ultimate merits of

the claim, we [found] that LeBar sufficiently alleged a violation of procedural due process

against CYS defendants Bahl. Staveikis, Gill, and Myles, and thus, we conclude[d] that

the claim was improperly dismissed pursuant to Rule 12(b)(6).” Id. at 10. Accordingly,

we vacated the District Court’s judgment as to CYS defendants Bahl, Staveikis, Gill, and

Myles and remanded the matter for further proceedings.
       The four remaining defendants thereafter filed an answer to LeBar’s complaint on

April 5, 2005, asserting, inter alia, that the complaint was barred by the applicable statute

of limitations. Defendants eventually followed their answer with the filing of motions for

summary judgment based in part on the statute of limitations defense. In ruling on

defendants’ second motion for summary judgment, the District Court noted that the

applicable limitations period was two years. See Wilson v. Garcia, 471 U.S. 261, 265

(1985); 42 Pa. Const. Stat. Ann. § 5524. The court further concluded that, as determined

by the Pennsylvania courts, the limitations period begins to run “when the plaintiff

knows, or reasonably should know: (1) that he has been injured, and (2) that his injury has

been caused by another party’s misconduct.” District Court’s Memorandum Opinion

entered 11/28/06 at 5, quoting Cathcart v. Keene Indus. Insulation, 471 A.2d 493, 500

(Pa. Super. Ct. 1984). The District Court’s application of that principle proved fatal to

LeBar’s procedural due process claim.

       The District Court noted that the primary bases for LeBar’s procedural due process

claim were allegations that CYS defendants Bahl, Saveikis, Gill, and Myles failed to

confer with him within the required 48 hours after his arrest on October 25, 2000 when

his daughter was taken into protective custody, and failed to conduct an informal hearing

within the required 72 hours, all in violation of state law, specifically 55 Pa. Code §

3130.61, 42 Pa. Cons. Stat. § 6332 and 23 Pa. Cons. Stat. § 6315(d) and (f). Given that

LeBar’s injury came about when the agency took his daughter into custody and failed to

follow proper procedure in reviewing her status, or, at the latest, on November 6, 2000,

when Monroe County Court of Common Pleas Judge Peter J. O’Brien ruled on the
agency’s emergency petition for protective custody of LeBar’s daughter, the District

Court found that LeBar’s procedural due process claim – set forth in his complaint dated

December 24, 2002 – was not filed in a timely fashion. The court noted that LeBar

signed a receipt on October 25th acknowledging that his daughter had been taken into

protective custody, and that he attended the November 6th hearing. According to the

District Court, the discovery rule was thus inapplicable as LeBar knew at that time that

the agency was the cause of his alleged injury, and he had only to exercise reasonable

diligence in investigating the particular claim he could bring. See Memorandum Opinion

of 11/28/06 at 7, citing Hayward v. Medical Center of Beaver County, 608 A.2d 1040,

1042 (Pa. 1992); Pocono International Raceway, Inc. v. Pocono Produce, Inc., 468 A.2d

471 (Pa. 1983). Since LeBar failed to file his complaint within the two year statute of

limitations for § 1983 claims, the District Court granted defendants’ summary judgment

motion on the ground that it was time barred.

       The District Court further concluded that summary judgment in favor of

defendants would be appropriate even if it were to consider the merits of LeBar’s

procedural due process claim. In support of that determination, the District Court noted

that defendants provided evidence that conclusively demonstrated that they informed

LeBar of the agency’s action in taking his daughter into protective custody within the

initial 24 hour period, as required by 23 Pa. Cons. Stat. § 6315(c). Additionally, even if

defendants violated 42 Pa. Cons. Stat. § 6332(a) by failing to hold a hearing within 72

hours of taking his daughter into custody, the District Court determined that, given the

particulars of this case – i.e., LeBar admitted to abusing his daughter, was incarcerated at
the time the agency took custody and had no opportunity to take custody of the child – the

procedures employed by the agency nonetheless provided LeBar with all the process due

him under the United States Constitution. Finally, the District Court concluded that

defendants were also entitled to qualified immunity.

       LeBar timely filed this appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291,

and review a District Court’s grant of summary judgment de novo. Pennsylvania Coal

Ass’n v. Babbitt, 63 F.3d 231, 236 (3d Cir. 1995). Having reviewed the record, we must

agree with the District Court that LeBar’s procedural due process claim was subject to

dismissal for having been filed beyond the applicable limitations period. As the District

Court correctly concluded, the discovery rule exception is simply not applicable. See,

e.g., Mest v. Cabot Corp., 449 F.3d 502, *510 (3d Cir. 2006) (“The discovery rule is

designed to ‘ameliorate the sometimes-harsh effects of the statute of limitations,’ and it is

often applied in medical malpractice and latent disease cases in which the plaintiff is

unable to discover his or her injury until several years after the tort occurred.”)(internal

citation omitted). Moreover, in the absence of unlawful acts committed during the

limitations period, LeBar can not demonstrate that a continuous tort has occurred.

LeBar’s complaint filed in December 2002 was untimely as to those events which

occurred in October and November 2000, and defendants were entitled to have judgment

entered in their favor.

       We will thus dismiss the instant appeal pursuant to 28 U.S.C. § 1915(e)(2)(B), as it

is lacking in legal merit. Neitzke v. Williams, 490 U.S. 319 (1989).

                                               5
