Kost v. KozakiewiczKost v. Kozakiewicz
ROSENN, Circuit Judge.
This appeal by two federal pretrial detainees housed under contract in the Allegheny County, Pennsylvania jail raises the question whether an existing class action against the defendants provided the plaintiffs with all the relief afforded them for their claims arising from their confinement under the United States Constitution and the Civil Rights Act,
I. BACKGROUND
On July 18, 1991, the plaintiffs George Kost and Francis Ferri filed a lengthy complaint in the United States District Court for the Western District of Pennsylvania against the defendants Charles Kozakiewicz, warden of the Allegheny County Jail (ACJ), other jail officials, Allegheny County, and certain county officials (referred to hereinafter collectively as the ACJ defendants or appellees); Goldline Laboratories (Goldline), a distributor of medical supplies; and Gatti Services (Gatti), a pharmacy. The complaint alleged in five counts forty-five various violations of plaintiffs’ rights under
Goldline and the ACJ defendants filed separate motions to dismiss pursuant to various subsections of
Plaintiffs filed objections to the magistrate judge‘s report. After de novo review, the district court entered an order adopting the report as the opinion of the court and granting summary judgment in favor of all defendants. Appellants timely appealed.1
Over the years, the ACJ has been the subject of considerable litigation regarding conditions at the facility, and some conditions have been adjudged unconstitutional. The ACJ was under court order to remedy these conditions by 1992.
All events relied upon by plaintiffs to establish their claims took place between February 20, 1987, and August 3, 1989. At some time during this period, each plaintiff was a federal pretrial detainee housed at the ACJ pursuant to a contract or some other arrangement between the United States and Allegheny County. Each plaintiff spent part of his time at the ACJ in the Disciplinary Housing Unit (DHU). Kost was housed in the DHU during the month of June 1988. Ferri was housed in the DHU from May 16, 1989, through August 1, 1989. They are currently inmates at the federal penitentiary in Leavenworth, Kansas.
II. ANALYSIS OF PLAINTIFFS’ CLAIMS
A. COUNT I
Plaintiffs alleged in Count I of their complaint that 1) inadequate heating and ventilation in the ACJ, combined with inmate exposure to toxic chemicals, exhaust fumes from gasoline operated combustion engines, and other fumes have shortened their life expectancy; 2) unbearable noise pollution and poor lighting within the cells at the ACJ have caused them “to suffer degenerative hearing and eyesight“; 3) unsanitary food preparation and serving procedures, coupled with inadequate and unsanitary personal hygiene and general living conditions, have caused them to incur diseases and have shortened their life expectancy; and 4) they have been caused needless pain and suffering.
B. COUNT II
Plaintiffs alleged in Count II of their complaint that the ACJ defendants: 1) impeded and obstructed their access to the courts and adequate law library facilities; 2) confiscated their legal documents; 3) provided no facilities within their individual cells for the retention of their legal documents; 4) allowed unbearable temperatures and overcrowding in the waiting area (bull-pen) where they were held for court appearances; and 5) caused them needless pain and suffering.
C. COUNT III
Count III of the complaint is based on two sets of events that allegedly occurred during Ferri‘s confinement in the DHU between May 16, 1989, and August 1, 1989. These events allegedly culminated in Ferri‘s suffering a lice infestation and a series of heatstrokes.
As to the lice infestation, plaintiffs alleged in their complaint that: 1) Goldline supplied the ACJ and/or Gatti with medical supplies for use in the treatment of inmates at the ACJ; 2) Gatti was under contract to provide medical services for the inmate population; 3) Goldline and Gatti bore a duty to them with respect to their medical care and welfare; 4) while in the DHU, the ACJ defendants inflicted upon Ferri unsanitary cells, shower facilities, bedding, and towels; 5) Ferri became infested with head and body lice because the ACJ defendants provided him with dirty bedding; 6) Goldline and Gatti supplied Ferri with inferior products and services in the treatment of the lice infestation; 7) the ACJ defendants failed to provide Ferri with the necessary medical care to cure the infestation; and 8) the infestation therefore remained with him until he was transferred out of the ACJ on August 4, 1989, causing him unbearable and needless pain and suffering for a 70-day period.
As to the series of heatstrokes, plaintiffs alleged in their complaint that: the ACJ defendants inflicted upon Ferri a total lack of ventilation coupled with cell temperatures “in excess of 90 to 100 degrees daily for 24 hours a day“; unbearable temperatures and lack of ventilation caused Ferri to suffer eight heatstrokes, which have had a degenerative effect upon his mental, physical, and “physicological” capacities; and his complaints to jail officials regarding the heatstrokes fell on deaf ears.
D. COUNT IV
Count IV of the complaint is based on events that occurred during Kost‘s confinement in the DHU in June 1988. Plaintiffs alleged in their complaint that: 1) certain ACJ defendants beat Kost at various times, often while he was handcuffed; 2) he was told during one of the beatings that “unless he cooperated with information about an aborted escape attempt ... he would receive more beatings“; 3) when he denied knowledge of the escape attempt, Kozakiewicz informed four of the inmates accused of attempting escape that Kost had indeed informed on them and then placed him in the range of cells within the DHU where the four inmates were housed, thereby jeopardizing his life; 4) during a two-week period, a jail official made daily inspections of Kost‘s cell, throwing away all toiletry articles and legal documents; and 5) when Kost was called to trial in his criminal case in federal court, jail officials refused to let him shower or shave prior to his appearances and had discarded all his clothing, forcing him to appear in court “like a drunken derelict,” which had a negative effect upon his ability to present a defense.
E. COUNT V
Plaintiffs alleged in Count V of their complaint that, beginning some time before the period in question in this case and shortly after Kozakiewicz became warden at the ACJ, various jail officials conspired to create a “goon squad” to inflict pain and suffering upon inmates to satisfy their “lust for brutality” and to instill fear in the general inmate population. Plaintiffs further alleged, as part of this conspiracy, that: 1) various jail officials committed attempted murder and murder; 2) an unusually high number of inmate beatings and injuries took place during the “goon squad” period as compared with prior periods; 3) an unusually high number of inmate deaths, attributable to unknown factors and ruled suicides, occurred during this period; 4) complaints made to jail officials and to members of the Prison Board about the beatings fell on deaf ears and that it was part of the conspiracy that such complaints would be ignored.
Plaintiffs also alleged that one object of the conspiracy was to disguise or mask acts of brutality by: performing them in isolated parts of the ACJ; writing an incident report against a beaten inmate falsely accusing him of attacking an officer or of other conduct requiring a physical response from the conspirators; causing internal medical reports to reflect retaliatory action by the conspirators whenever a gratuitously beaten inmate suffered physical injuries that required medical treatment within the ACJ; and having at least one conspirator claim personal injuries from a falsely alleged attack by a gratuitously beaten inmate whenever such an inmate suffered injuries requiring outside medical treatment.
Additionally, plaintiffs alleged that: various jail officials used a parabolic microphone to intercept conversations between Ferri and another inmate; in May 1989, Kozakiewicz had all windows and other means and methods of air ventilation in the DHU sealed off, as a result of which from June 1989 through August 1, 1989, Ferri suffered eight heatstrokes in the DHU for which neither jail officials nor Gatti attempted to provide him with any medical care.
Plaintiffs also listed overt acts related to the alleged conspiracy. This list primarily sets forth acts involving inmates other than plaintiffs that took place before June 1989. Any acts involving the plaintiffs and/or taking place after July 18, 1989, are those already set forth in Counts III and IV.
Plaintiffs requested compensatory and punitive damages in each count.
III. DISCUSSION
A. PRESERVATION OF ISSUES ON APPEAL
Before discussing the appellants’ contentions on appeal, we note first that under Federal Rule of Appellate Procedure 28(a)(3) and (5) and Third Circuit Local Appellate Rule 28.1(a), appellants are required to set forth the issues raised on appeal and to present an argument in support of those issues in their opening brief. Simmons v. City of Philadelphia, 947 F.2d 1042, 1065 (3d Cir.1991) (“absent extraordinary circumstances, briefs must contain statements of all issues presented for appeal, together with supporting arguments and citations“), cert. denied, --- U.S. ----, 112 S.Ct. 1671, 118 L.Ed.2d 391 (1992); 16 Charles A. Wright et al., Federal Practice and Procedure Sec. 3974, at 421 (1977 and Supp.1993, at 690) (“to assure consideration of an issue by the court, the appellant must both raise it in [the] Statement of the Issues and pursue it in the Argument section of the brief“). It is well settled that if an appellant fails to comply with these requirements on a particular issue, the appellant normally has abandoned and waived that issue on appeal and it need not be addressed by the court of appeals. Institute for Scientific Info., Inc. v. Gordon & Breach, Science Publishers, Inc., 931 F.2d 1002, 1011 (3d Cir.1991); Roberts v. N.C. Sawyer, 252 F.2d 286, 287 (10th Cir.1958).
In the present case, the appellants have not set forth any issues related to
Additionally, appellants seem to suggest on appeal that Goldline and Gatti are liable for injury caused by the allegedly ineffective lice medication prescribed for Ferri under Pennsylvania products liability law. It is also well settled, however, that casual mention of an issue in a brief is cursory treatment insufficient to preserve the issue on appeal. Simmons, 947 F.2d at 1066. The appellants only suggest the existence of these claims in passing in a short footnote in their opening brief, without argument or relevant citation. They never articulate or argue anywhere in that brief the necessary contention that the district court erred in failing to recognize such claims in their complaint.3 We therefore conclude that appellants have abandoned and waived this issue on appeal.
In summary, as to Goldline, we conclude that appellants have not appealed any products liability issue or any
As to Gatti, we conclude that appellants have not appealed any products liability issue or any
B. STANDARD OF REVIEW
In that 1) there is nothing in the magistrate judge‘s report indicating that the ACJ defendants’ motion to dismiss was treated as a motion for summary judgment and 2) the district court‘s order specifically adopted that report with its recommendation that this motion to dismiss be granted, the district court appears to have inadvertently entered summary judgment in favor of these defendants. Therefore, appellants’ appeal as to them will be treated as an appeal from dismissal under
Because we treat the portion of this appeal involving the ACJ appellees as if it were from the dismissal of all claims against those appellees, the only pertinent facts on appeal are those alleged in the complaint. As to the claims against Gatti, however, which were disposed of by summary judgment in a procedurally correct manner, facts not alleged in the complaint but appearing in evidentiary sources provided in the record on appeal will be considered.4
1. Dismissal under Rule 12(b)(6)
Our review of a district court‘s dismissal under
We apply the same standard the district court is required to apply. We therefore accept all factual allegations in the complaint as true and give the pleader the benefit of all reasonable inferences that can be fairly drawn therefrom. Wisniewski v. Johns-Manville Corp., 759 F.2d 271, 273 (3d Cir.1985). However, “we are not required to accept legal conclusions either alleged or inferred from the pleaded facts.” Mescall v. Burrus, 603 F.2d 1266, 1269 (7th Cir.1979).
2. Summary Judgment
Our review of a district court‘s grant of summary judgment also is plenary. Carlson v. Arnot-Ogden Memorial Hosp., 918 F.2d 411, 413 (3d Cir.1990). “On review the appellate court is required to apply the same test the district court should have utilized initially.” Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977).
[T]he plain language of
Rule 56(c) mandates the entry of summary judgment ... against a party who fails to make a showing sufficient to establish the existence of an element essential to that party‘s case, and on which that party will bear the burden of proof at trial. [Where there is] a complete failure of proof concerning an essential element of the nonmoving party‘s case[, all other facts are rendered immaterial and t]he moving party is “entitled to summary judgment as a matter of law” because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Celotex also holds that in responding to a motion for summary judgment,
C. SUMMARY JUDGMENT IN FAVOR OF GATTI
Factual allegations supporting the plaintiffs’ claims against Gatti appear in Counts III and V. The record also contains a copy of an affidavit submitted by Gatti with its motion. The affidavit averred that Gatti had a contract with a third party, Corrections Medical Systems, Inc., under which it provided off-site prescription filling services for physicians who treated prisoners at ACJ from January 1, 1989, to August 31, 1989; and that Gatti filled all prescriptions at its offices and had no contact with any prisoners in the ACJ. The complaint alleged that: Gatti owed plaintiffs some kind of duty with respect to their medical care and welfare; Gatti supplied Ferri with an inferior product for use in treating his lice infestation, which did not rid him of the infestation; and Gatti did not attempt to provide Ferri with any medical care for his heatstrokes.
Based on these allegations, plaintiffs claimed that Gatti violated Ferri‘s rights under
Although it is possible for a private party to violate an individual‘s
Plaintiffs’
Thus, nothing in the complaint‘s factual allegations provides a basis for establishing the nexus necessary to show that Gatti acted (or failed to act) under color of state law with regard to Ferri, and plaintiffs have failed to go beyond their pleadings to designate facts that would create a genuine issue of material fact on this element. This complete failure of proof on an essential element of plaintiffs’
Plaintiffs’
The Court emphasized that simple negligence was not the appropriate standard because “[m]edical malpractice does not become a constitutional violation merely because the victim is a prisoner.” [Estelle, 429 U.S. at 106, 97 S.Ct. at 292]. Medical malpractice may give rise to a tort claim in state court but not necessarily to a constitutional claim.
Therefore, to establish that Gatti‘s conduct deprived Ferri of any federal rights in a manner sufficient to withstand a motion for summary judgment, plaintiffs were obligated to designate facts supporting the existence of both deliberate indifference on the part of Gatti and a serious medical condition on the part of Ferri. The record does not show that the plaintiffs attempted, much less succeeded, in doing so. Therefore, as to the alleged lice infestation, plaintiffs have failed to establish a genuine issue of material fact as to the existence of both deliberate indifference and a serious medical condition. As to the alleged heatstrokes, they have failed to establish a genuine issue of material fact as to the existence of deliberate indifference. Thus, although plaintiffs’ allegations, like the allegations of medical malpractice in Estelle and Boring, may give rise to a state tort claim, they do not rise to the level of federal constitutional violations.
This complete failure of proof on the second essential element of plaintiffs’
As to the
In summary, the district court did not err in granting summary judgment of all claims against Gatti, and its judgment will therefore be affirmed.
D. DISMISSAL OF CLAIMS AGAINST THE ACJ DEFENDANTS
1. Counts I and II
The magistrate judge found that the plaintiffs complained of various conditions of confinement that were previously addressed by the United States District Court for the Western District of Pennsylvania in a series of decisions and orders in a class action suit brought on behalf of present and future ACJ inmates against certain ACJ defendants, in which the class requested injunctive relief from unconstitutional jail conditions. See, e.g., Owens-El v. Robinson (Owens-El I), 442 F.Supp. 1368 (W.D.Pa.1978); Owens-El v. Robinson (Owens-El II), 457 F.Supp. 984 (W.D.Pa.1978), aff‘d in part, vacated in part by Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754 (3d Cir.1979); Inmates of Allegheny County Jail v. Wecht (Wecht I), 699 F.Supp. 1137 (W.D.Pa.1988), appeal dismissed in part, aff‘d in part, 874 F.2d 147 (3d Cir.), cert. granted and judgment vacated by 493 U.S. 948, 110 S.Ct. 355, 107 L.Ed.2d 343 (1989); Inmates of the Allegheny County Jail v. Wecht (Wecht II), 901 F.2d 1191 (3d Cir.1990).6
A reading of these and other related decisions fails to verify that all of plaintiffs’ allegations have already been addressed in these earlier decisions. Specifically, although the court discussed temperature extremes in the facility as contributing to a general finding of unconstitutional jail conditions, there is no discussion of inadequate ventilation7 or of the combined effects of inadequate ventilation, temperature extremes, and the use within the facility of chemicals and machines that give off toxic fumes.8 There is also no discussion of noise, lighting levels, or unsanitary food preparation and service procedures.
Although prior decisions do discuss the inadequacy of the law library and lack of access to it by female inmates housed in an annex to the jail, there is no discussion of hindered access to the library for male occupants of the jail itself or of problems in the maintenance of legal documents.
Conditions of confinement at the ACJ are the continuing concern of the district court. The court, however, cannot respond to new or different problems related to those conditions if it deems that, by addressing some conditions at the jail, all conditions have been addressed. Further, it may very well be that only through complaints such as the one under consideration will the court become apprised of the ACJ defendants’ failure to comply with prior court orders on conditions that actually have already been addressed.
In Jordan v. Jones, 563 F.2d 148 (5th Cir.1977), an individual inmate brought a civil rights action claiming deprivations at a county jail. As in the present case, the district court dismissed on the ground that the claims asserted were similar to those involved in a class action previously decided. The court stated:
Some of [the inmate‘s] long litany of complaints are subsumed in the [class action] opinion and order, some are patently frivolous, but others fall in neither of these categories. The District Court could reopen the [class action] and refer [the inmate‘s] complaints to plaintiff counsel therein for them to handle as attorneys for the class, or could consolidate the present case with the [class action]. But it could not dismiss the present case on the basis that it presents issues which are similar to those in the class suit and could be presented in that suit. Also, one of the allegations is that jail officials are not complying with the [class action] order. This has to be dealt with in some manner other than dismissal.
Jordan, 563 F.2d at 148 (emphasis added).
Although the plaintiffs did not specifically allege in their complaint that jail and county officials were not complying with prior orders in the ACJ class action suit, they did raise matters in their complaint that are not patently frivolous or specifically subsumed in the prior class action opinions and orders. To this extent, they complained of conditions that should have been considered within the context of the class action suit or in a case consolidated with that suit, and the district court therefore erred in granting summary judgment on, and would have erred had it dismissed, those portions of plaintiffs’ complaint dealing with such matters.
Further, to the extent that the court deciding the ACJ class action suit found no basis for money damages on claims raised in the consolidated class action against certain ACJ defendants, which may or may not include all jail and county officials named in the present case, that finding was based on a lack of evidence of wrongful intention or culpable negligence on the part of those particular ACJ defendants. Owens-El I, 442 F.Supp. at 1391. Because plaintiffs complain of matters not addressed in prior opinions and orders and against an apparently broader group of defendants, no such determination has been made as to jail and county officials with regard to the new matters pressed in the instant suit.
It may yet be, however, that Counts I and II of the complaint fail to state a claim upon which relief can be granted, but if so, it must be either because 1) the alleged conduct and conditions do not fall within the limitations period; or 2) the complaint fails to allege sufficient facts to support the essential elements of plaintiffs’ claims or to permit inferences to be drawn that these elements exist. In the latter case, the necessary determination should be made upon remand with reference to the elements set forth in Wilson v. Seiter, --- U.S. ----, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991).9
Therefore, we will vacate the district court‘s summary judgment on appellants’
2. Count III
In this count, plaintiffs alleged two general conditions of confinement violations and two specific violations based on inadequate medical treatment. See Seiter, --- U.S. at ----, 111 S.Ct. at 2326 (“the medical care a prisoner receives is just as much a ‘condition’ of his confinement as the food he eats ... or the temperature he is subjected to in his cell“). Specifically, plaintiffs alleged that the ACJ defendants’ deliberate indifference both caused Ferri‘s lice infestation and heatstrokes and prevented him from receiving effective treatment for those conditions.
As to claims by pretrial detainees of inadequate medical treatment, this court has stated:
Pretrial detainees are not within the ambit of the Eighth Amendment but are entitled to the protections of the Due Process clause. The Due Process clause requires the government to provide appropriate medical care. As the [Supreme] Court observed in [City of Revere v. Massachusetts General Hospital, 463 U.S. 239, 244, 103 S.Ct. 2979, 2983, 77 L.Ed.2d 605] (1983) ], the Due Process rights of a pretrial detainee are “at least as great as the Eighth Amendment protections available to a convicted prisoner.”
* * *
The protection afforded a sentenced prisoner under the Eighth Amendment was discussed in Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251] ... (1976). There the Court said: “Acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs” constitute cruel and unusual punishment under the Constitution.
The Supreme Court has recently set forth the standard for violations of the Eighth Amendment based on nonmedical conditions of confinement. Seiter, --- U.S. at ----, 111 S.Ct. at 2324, 2326-27. This standard would also apply to appellants as pretrial detainees through the Due Process Clause. The standard has an objective and a subjective component, just as the Estelle standard does. A plaintiff must prove that prison officials acted with deliberate indifference and that he or she suffered a deprivation of ” ‘the minimal civilized measure of life‘s necessities.’ ” Seiter, --- U.S. at ----, ----, 111 S.Ct. at 2324, 2326-27 (quoting Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 2399, 69 L.Ed.2d 59 (1981)).
a. Causing the Lice Infestation
Plaintiffs alleged that the jail and county officials’ “deliberate indifference towards Ferri‘s care and welfare while he was housed in the DHU caused him to become infected with head and body lice as a result of providing him with dirty bed linen or mattresses.” Although we recognize that the Eighth Amendment “does not mandate comfortable prisons,” Rhodes, 452 U.S. at 349, 101 S.Ct. at 2400, we believe that inmates do have a right to be free of conditions that generate infestations of vermin. Plaintiffs have therefore stated a claim sufficient to withstand dismissal under the Seiter standard, provided the claim also withstands scrutiny under the applicable statute of limitations.
Plaintiffs filed their complaint on July 18, 1991. Therefore, if their claim that the ACJ defendants caused Ferri‘s infestation accrued before July 18, 1989, it is barred by the Pennsylvania two-year statute of limitations for personal injury actions. Wilson v. Garcia, 471 U.S. 261, 280, 105 S.Ct. 1938, 1949, 85 L.Ed.2d 254 (1985);
Thus, although it was error to grant summary judgment on this claim, see supra section III.B., it would not have been error to dismiss it on statute of limitations grounds. Therefore, the district court‘s grant of summary judgment will be vacated and the claim remanded with instructions to dismiss it.
b. Causing the Heatstrokes
Plaintiffs alleged that “the unbearable temperatures and lack of ventilation brought about by the deliberate indifference of the Defendants caused Ferri to suffer eight (8) heat strokes” while he was in the DHU. It cannot be ascertained from the complaint whether any of the alleged heatstrokes occurred after July 18, 1989. If one or some of these heatstrokes did occur after this date, so too would the cause. Heatstroke is a serious medical condition. Acts or omissions of a deliberately indifferent nature that repeatedly cause a serious medical condition are more than sufficient to meet the Seiter standard. Therefore, the complaint would state a claim upon which relief can be granted if any of Ferri‘s heatstrokes occurred after July 18.
The district court‘s grant of summary judgment on this
c. Inadequate Treatment of the Lice Infestation
A prison‘s dispensing of vermin infested bedding, which causes that detainee‘s personal infestation, may establish a violation of a pretrial detainee‘s due process rights paralleling an Eighth Amendment violation against a convicted inmate. Ferri‘s alleged infestation in and of itself, however, fails to establish the existence of a serious medical need as required under Estelle and Boring. Therefore, plaintiffs fail to set forth sufficient information in their complaint as to this element of their claim.
Thus, although summary judgment on this portion of Count III should not have been granted, see supra section III.B., it would not have been error to have dismissed this claim pursuant to
d. Lack of Treatment for Heatstroke
The same cannot be said for plaintiffs’
3. Count IV
The magistrate judge found that all of the incidents alleged to support the
a. The Statute of Limitations on Sec. 1983 Claims
There is no federal statute of limitations for
In the face of this precedent, appellants’ argument for application of the longer Pennsylvania limitations period for breach of contract is plainly frivolous. As already set forth, the Pennsylvania limitations period for personal injury actions is two years. The complaint was filed in 1991. All events related to Kost‘s confinement in the DHU occurred in 1988. The Count IV
b. The Contract Claim
As to the contract claim, appellants raise an issue on objections to the magistrate judge‘s report and on appeal that has no predicate in their complaint. Count IV of the complaint alleges that certain ACJ defendants, “by their acts of deliberate indifference towards the care and welfare of the Plaintiff George Kost infliced [sic] the following torts upon him.” This allegation is then followed by a statement of the misconduct alleged of these defendants. Kost makes no allegation, explicit or implicit, that this activity constituted violations of any contract between United States and Allegheny County or that he had standing to sue under such a contract. The contract is neither attached as an exhibit to the complaint nor are its pertinent provisions incorporated into the complaint.
Moreover, in his comprehensive statement in the complaint of the legal bases for his claim, Kost alleges a denial of federal due process and other federal constitutional violations; statutory violations under
Therefore, although it was error to grant summary judgment on this phase of the case, see section III.B., it would not have been error to dismiss it pursuant to the ACJ defendants’
4. Count V
The conspiracy alleged in Count V of the plaintiffs’ complaint is a civil conspiracy to deprive them of civil rights guaranteed under
There is a split of authority on when the limitations period for a civil conspiracy commences. Some courts apply the rule used in criminal cases, that is, the limitations period begins on the commission of the last overt act of the conspiracy.
Other jurisdictions, including those of this circuit, have applied the rule that the period runs from each overt act causing damage.
The rule generally adopted by the case law in this circuit provides greater certainty as to when a particular cause of action arises. For each act causing injury, a claimant must seek redress within the prescribed limitations period. Such a rule is consistent with the distinction between civil and criminal conspiracies. In the civil case, actual injury is the focal point, not the illegal agreement per se, as is true in the criminal context.
Adoption of the last overt act rule urged by [the plaintiff] would invite attempts to revive time-barred injuries by piggy-backing them onto actions occurring within the relevant period. No unfairness results in requiring diligence in seeking a remedy within the period measured from the date an injury occurs. We conclude that [the plaintiff‘s] conspiracy allegation would not preserve claims that the district court ruled were otherwise barred by the two-year statute of limitations.
Wells, 728 F.2d at 217 (emphasis added).
Appellants attempt to defeat this precedent by pointing to allegations of murder and attempted murder--allegations which would otherwise be disregarded as legal conclusions, Mescall v. Burrus, 603 F.2d 1266, 1269 (7th Cir.1979)--to dispense with a limitations period entirely. Under Garcia, however, even murder would be considered a personal injury under a claim of civil conspiracy for purposes of determining the applicable statute of limitations. Therefore, by synthesizing Wells, Garcia, and Pennsylvania‘s personal injury statute of limitations, plaintiffs were required to seek redress for each act of the alleged conspiracy causing injury within two years of its occurrence. Thus, in the present case, all claims based on acts occurring before July 18, 1989, are time-barred.
As noted above, plaintiffs incorporated by reference all
Under these circumstances, plaintiffs’ conspiracy claim may appear redundant; however, should plaintiffs’ remaining
IV. CONCLUSION
In the instant case, appellants’ appeal presents no issue involving Goldline. It presents no products liability issue involving Gatti. It presents no
As to the issues presented on appeal involving Gatti, the district court did not err in granting Gatti‘s motion for summary judgment on both plaintiffs’
As to issues on appeal involving the ACJ defendants, the district court‘s grant of summary judgment on plaintiffs’
Additionally, the district court‘s grant of summary judgment on Count IV of plaintiffs’ complaint against the ACJ defendants will be vacated and this portion of the case remanded with instructions to dismiss it. Finally, the district court‘s grant of summary judgment on plaintiffs’
The appellants will be assessed costs as to Goldline and Gatti. As to all other issues, each side will bear its own costs.
Notes
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ..., subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity or other proper proceeding for redress....