# SPEROW v. BERKS COUNTY SHERIFF'S DEPARTMENT

> District Court, E.D. Pennsylvania · May 8, 2020

URL: https://www.frixlaw.com/law-library/cases/10398929

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** May 8, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10398929

## How later opinions describe it (automated extraction)

- holding that a criminal defendant who fails to move for the return of property related to a criminal prosecution during the pendency of a criminal proceeding or within 30 days of its termination has waived the issue
- holding that six-year statute of limitations applies to petition for the return of property seized by police where movant was not a party to the related criminal proceedings

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SHANE SPEROW, :
Plaintiff, :
:
v. : CIVIL ACTION NO. 20-CV-1495
:
BERKS COUNTY SHERIFF’S :
DEPARTMENT, et al., :
Defendants. :

MEMORANDUM
PADOVA, J. MAY 8 , 2020
Plaintiff Shane Sperow, a state prisoner who is representing himself (proceeding pro se)
brings this civil action against several Berks County Defendants based on allegations that they
violated his constitutional rights by seizing and failing to return his property, including several
firearms. Sperow also filed a Motion for Leave to Proceed In Forma Pauperis and a copy of his
Prisoner Trust Fund Account Statement for the six-month period preceding the filing of this case.
(ECF Nos. 1 & 3.) For the following reasons, the Court will grant Sperow leave to proceed in
forma pauperis, dismiss his federal claims as time-barred, and dismiss his state claims for lack of
subject matter jurisdiction.
I. FACTUAL ALLEGATIONS
The Complaint names the following seven Defendants: (1) the Berks County Sheriff’s
Department (“Sheriff’s Department”); (2) Eric J. Weaknecht, identified as the Sheriff; (3)
Timothy Moore, identified as a Captain within the Sheriff’s Department; (4) Edward Winters,
identified as the Deputy Sheriff; (5) the Berks County Probation Department (“Probation
Department”); (6) Daniel Heydt, identified as the Deputy Chief of the Probation Department; and
(7) Brian D. Harting, identified as a Probation Officer. (Compl. ECF No. 2 at 16.)1 Sperow sued
the Defendants in their individual and official capacities.
Sperow was arrested on April 19, 2014 and charged with, among other things, aggravated
assault of a victim less than six, terroristic threats with intent to terrorize another, and

endangering the welfare of children. (Id. at 19); see Commonwealth v. Sperow, CP-06-CR-
0001974-2014 (Berks Cty. C.P.). Two days later, Sperow’s then-fiancée obtained a protection
from abuse order (“PFA”) against him. (Id. at 20.) As a condition of the PFA, Sperow was
required within twenty-four hours to relinquish any firearms to the Berks County Sheriff’s
Department or a qualified third party. (Id.) He was also prevented from returning to the
residence he shared with his then-fiancée to retrieve his property. (Id.)
On April 23, 2014, Defendants Moore and Winters, acting on behalf of the Sheriff’s
Department, seized fifteen firearms belonging to Sperow from the residence he shared with his
then-fiancée. (Id. at 20-21.) According to Sperow, he was “not afforded any opportunity to
retrieve and transfer his legally owned firearms” before they were seized. (Id. at 20.) He adds

that he was not served with the PFA until April 28, 2014. (Id. at 22.) Sperow requested receipts
for his property from the Sheriff’s Department and inquired as to the proper procedure for
transferring possession to a designee; he was told that his firearms could not be returned or
transferred while the PFA order was in place. (Id. at 22.)
On August 13, 2014, Sperow pled guilty to simple assault in the criminal case against
him and was sentenced to two years of probation. (Id.) As a condition of probation, Sperow was
prohibited from possessing firearms. (Id.) Five days later, the PFA was dismissed. (Id.)
Accordingly, Sperow asked to transfer possession of his firearms to a designee, but his request

1 The Court adopts the pagination supplied by the CM/ECF docketing system.
was denied by the Sheriff’s Department. (Id.) Sperow alleges he obtained written approval from
Defendants Heydt and Harting of the Probation Department to transfer possession of the
firearms, but despite being presented with that documentation, the Sherriff’s Department refused
to transfer the firearms to Sperow’s designee. (Id. at 23.)

On October 15, 2015, Probation Officer Harting arrested Sperow for failure to comply
with the terms of his probation. (Id.) Sperow was at his then-fiancée’s residence at the time of
the arrest, and Sperow alleges that Harting searched the residence without a warrant or a legal
basis for the search. (Id. at 23-26.) Several items were confiscated during the search of the
residence, including knives, ammunition, and other weapons. (Id. at 26-28.) Sperow avers that
he did not receive receipts describing the confiscated property until July 18, 2017 and August 7,
2017, and only then after numerous requests. (Id. at 29.) The receipts reflected that Harting
conducted a second search of the residence on October 16, 2015 and seized additional items
belonging to Sperow. (Id.)
On October 17, 2015, Sperow was charged with “prohibited offensive weapons” based on

evidence obtained during the searches. (Id. at 29-30); see also Commonwealth v. Sperow, CP-
06-CR-0005775-2015 (Berks C.C.P.). On February 8, 2016, Sperow pled guilty and was
sentenced to two years of probation on the 2015 charge and a term of six to twenty-three months
of imprisonment for violating probation in his 2014 case.2 (ECF No. 2 at 30.)

2 At his sentencing hearing, Sperow provided a “a document claiming that he had been deployed
as a United States Marine in Iraq, Afghanistan, Somolia, [sic] and other locations, and had been
awarded two Purple Hearts and a Bronze Star as a result of his heroic service, when he in fact
had never served in the Marines.” Commonwealth v. Sperow, No. 1619 MDA 2018, 2019 WL
3231727, at *1 (Pa. Super. Ct. July 17, 2019). In 2016, Sperow was charged with and pled guilty
to unsworn falsification to authorities based on that document. Id.
On September 12, 2016, Sperow filed motions for the return of his property in both of his
criminal cases. (Id.) Ten days later, he sent a letter to the Sheriff’s Department asking to
transfer possession of his firearms to a designee but did not receive a response. (Id.) The Court
of Common Pleas denied Sperow’s motion on September 23, 2016. (Id.) According to Sperow,

the denial was erroneous because he did not receive a hearing. (Id.) Sperow appealed, arguing
that he was entitled to the return of his property because it was seized illegally and because the
Sheriff’s Department failed to respond to his repeated requests to retrieve or transfer possession
of the property. (Id. at 31.) On January 10, 2017, Sperow’s appeal was quashed. (Id. at 33); see
also Commonwealth v. Sperow, 1799 MDA 2016 (Pa. Super. Ct.). He filed a petition for
allowance of appeal with the Supreme Court of Pennsylvania, which was denied on August 8,
2017, followed by an unsuccessful motion for reconsideration, which was denied on September
15, 2017. (ECF No. 2 at 34-35); see also Commonwealth v. Sperow, 134 MAL 2017 (Pa.).
In the meantime, on August 10, 2017, Sperow’s designee was permitted to retrieve
certain of his property from Probation Officer Harting, which did not include Sperow’s firearms.

(ECF No. 2 at 35-36.) On October 14, 2017, following another request, Sperow received a list of
his firearms confiscated by the Sheriff’s Department. (Id. at 37.) Thereafter, Sperow wrote a
letter to Sheriff Weaknecht requesting that the Sheriff “please personally assist him in
determining the status and whereabouts of his firearms, and what process he has to compete so
that his firearms can finally be transferred to his POA, since all of his efforts so far have
allegedly been improper.” (Id.) He received a response from an attorney on January 22, 2018,
which asserted that he was “now ineligible to possess firearms, thus his firearms will not be
returned to him, nor will [he] be permitted to transfer his property to a third party.” (Id.) Sperow
disagrees with that assessment for various reasons, including his belief that the initial seizure was
improper. (Id. at 37-38.) Sperow wrote another letter, to which he received a response on April
19, 2018 “stating in part that his firearms would not be returned due to the time period for their
return being expired.” (Id. at 38.)
Based on those allegations, Sperow asserts various constitutional claims based on the

seizure of his property, the searches that led to the seizure of his property, and the failure to
return his firearms. (Id. at 17.) First, he claims he was denied due process because his firearms
and other property was seized without a hearing or other process, he was not permitted to
transfer possession of his firearms to a third party after the PFA was dismissed on August 18,
2014, and his motion for return of his property was denied without a hearing. (Id. at 39.)
Second, Sperow asserts Fourth Amendment claims based on the seizures of his property that
occurred on April 23, 2014, and October 15 and 16, 2015. (Id. at 40.) Third, Sperow asserts
Fourth Amendment and Fourteenth Amendment (presumably due process) claims because
Defendants deprived him of his property and refused to transfer that property to a designee. (Id.
at 41.) Fourth, Sperow contends that the seizure of his property violates the Eighth Amendment.

(Id. at 42.) Fifth, Sperow alleges that his Sixth Amendment rights were violated because he was
unable to sell the seized property to pay for criminal defense counsel. (Id. at 42.) Sixth, Sperow
alleges that his Second Amendment rights were violated when he was not permitted to transfer
possession of his firearms to a third party. (Id. at 43.) Sperow also purports to raise claims
under Pennsylvania law. (Id.) He seeks various declarations that his rights have been violated,
an injunction directing the return of his firearms or transfer to a third party, and damages. (Id. at
44-45.)
II. STANDARD OF REVIEW
The Court grants Sperow leave to proceed in forma pauperis because it appears that he is
not capable of paying the fees to commence this civil action. Accordingly, 28 U.S.C. §
1915(e)(2)(B)(ii) applies, which requires the Court to dismiss the Complaint if it fails to state a

claim. Whether a complaint fails to state a claim under § 1915(e)(2)(B)(ii) is governed by the
same standard applicable to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6),
see Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999), which requires the Court to
determine whether the complaint contains “sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quotations omitted). The Court may also consider matters of public record. Buck v. Hampton
Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006). Additionally, the Court may dismiss claims
based on an affirmative defense if the affirmative defense is obvious from the face of the
complaint. See Wisniewski v. Fisher, 857 F.3d 152, 157 (3d Cir. 2017) (“A complaint is subject
to dismissal for failure to state a claim on statute of limitations grounds only when the statute of

limitations defense is apparent on the face of the complaint.”). As Sperow is proceeding pro se,
the Court construes his allegations liberally. Higgs v. Att’y Gen., 655 F.3d 333, 339 (3d Cir.
2011).
The Court must also review the pleadings and dismiss the matter if it determines that the
action fails to set forth a proper basis for this Court’s subject matter jurisdiction. 28 U.S.C. §
1915(e)(2)(B); Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-
matter jurisdiction, the court must dismiss the action.”); Group Against Smog and Pollution, Inc.
v. Shenango, Inc., 810 F.3d 116, 122 n.6 (3d Cir. 2016) (explaining that “an objection to subject
matter jurisdiction may be raised at any time [and] a court may raise jurisdictional issues sua
sponte”). A plaintiff commencing an action in federal court bears the burden of establishing
federal jurisdiction. See Lincoln Ben. Life Co. v. AEI Life, LLC, 800 F.3d 99, 105 (3d Cir. 2015)
(“The burden of establishing federal jurisdiction rests with the party asserting its existence.”
(citing DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n.3 (2006))).

III. DISCUSSION
A. Section 1983 Claims
Sperow’s § 1983 claims are clearly time-barred. Pennsylvania’s two-year statute of
limitations applies to these claims.3 See 42 Pa. Cons. Stat. § 5524; Wallace v. Kato, 549 U.S.
384, 387 (2007). His claims accrued when he “ha[d] a complete and present cause of action, that

3 Sperow notes that the Pennsylvania Commonwealth Court has applied a six-year statute of
limitations to motions for the return of property, (ECF No. 2 at 43), although it is not clear that
rule applied to the motion Sperow filed in his criminal case. Compare In re Return of Pers.
Prop., 180 A.3d 1288, 1293 (Pa. Commw. Ct. 2018) (holding that six-year statute of limitations
applies to petition for the return of property seized by police where movant was not a party to the
related criminal proceedings) with Commonwealth v. Allen, 107 A.3d 709, 717 (Pa. 2014)
(holding that a criminal defendant who fails to move for the return of property related to a
criminal prosecution during the pendency of a criminal proceeding or within 30 days of its
termination has waived the issue). To the extent Sperow’s Complaint can be read to suggest that
a six-year statute of limitations applies to his § 1983 claims based on the deprivation of his
property, that suggestion is incorrect. “A section 1983 claim is characterized as a personal-injury
claim and thus is governed by the applicable state’s statute of limitations for personal-injury
claims.” Dique v. New Jersey State Police, 603 F.3d 181, 185 (3d Cir. 2010). Accordingly,
Pennsylvania’s two-year statute of limitations applies regardless of whatever limitation period
applies to petitions for return of property. See Reitz v. Cty. of Bucks, 125 F.3d 139, 143 (3d Cir.
1997) (applying Pennsylvania’s two-year statute of limitations to claims based on failure to
return property, noting that “well-founded causes of action under section 1983 are best
characterized as tort actions for the recovery of damages for personal injuries” and that other
limitations periods are “irrelevant”); see also Lewicki v. Washington Cty., Pa., 431 F. App’x 205,
208 n.1 (3d Cir. 2011) (applying Pennsylvania’s two-year statute of limitations for personal
injury claims to constitutional claims based on deprivation of property over plaintiff’s assertion
“without citation to any controlling authority, that their action should be governed by the
Pennsylvania six-year statute of limitations”).
is, when [he could] file suit and obtain relief.” Dique, 603 F.3d at 185 (quotations omitted).
Pursuant to the prison mailbox rule, a prisoner’s complaint is considered filed at the time he
hands it over to prison authorities for forwarding to the Court. See Houston v. Lack, 487 U.S.
266, 276 (1988).

However, the limitations period may be tolled in accordance with Pennsylvania law.
Dique, 603 F.3d at 185. Pennsylvania allows for tolling based on the “discovery rule,” which
“delays the running of the statute until the plaintiff knew, or through the exercise of reasonable
diligence should have known, of the injury and its cause,” Beauty Time, Inc. v. VU Skin Sys.,
Inc., 118 F.3d 140, 144 (3d Cir. 1997) (quotations omitted), and based on fraudulent
concealment. See 42 Pa. Cons. Stat. § 5504; see also Aivazoglou v. Drever Furnaces, 613 A.2d
595, 598 (Pa. Super. Ct. 1992). “As the discovery rule has developed, the salient point giving
rise to its application is the inability of the injured, despite the exercise of reasonable diligence,
to know that he is injured and by what cause.” Fine v. Checcio, 870 A.2d 850, 858 (Pa. 2005).
“[T]he reasonable diligence standard is objective, as the question is not what the plaintiff

actually knew of the injury or its cause, but what he might have known by exercising the
diligence required by law.” Nicolaou v. Martin, 195 A.3d 880, 893 (Pa. 2018). (citations
omitted). However, “the objective reasonable diligence standard is ‘sufficiently flexible . . . to
take into account the differences between persons and their capacity to meet certain situations
and the circumstances confronting them at the time in question.’” Id. (quoting Fine, 870 A.2d at
858). “Under Pennsylvania’s fraudulent concealment doctrine, the statute of limitations is tolled
where the defendant undertakes an ‘affirmative and independent act of concealment that would
prevent the plaintiff from discovering the injury despite the exercise of reasonable
diligence.’” Barren v. Allegheny Cty. Pennsylvania, 607 F. App’x 130, 131–32 (3d Cir. 2015)
(per curiam) (quoting Bohus v. Beloff, 950 F.2d 919, 926 (3d Cir. 1991)).
Sperow’s claims related to the seizure of his property and the searches that led to those
seizures are clearly time-barred based on the allegations of the Complaint. Although it is not

clear when Sperow delivered his Complaint to prison authorities for mailing, the Complaint is
dated March 12, 2020, so that is the earliest possible date of filing. The challenged searches and
seizures occurred on April 23, 2014 and October 15 and 16, 2015.
Sperow had a complete cause of action on the dates the searches and seizures occurred,
and his allegations detailing his correspondence with the Sheriff’s Department and Probation
Department reflect that he knew or should have known of those searches and seizures shortly
after they occurred, even if he might have been unaware of some specific information.
Furthermore, Sperow’s motion for return of the seized property, in which he alleged that the
underlying searches and seizures were unjustified, confirms actual knowledge of his injuries and
ability to pursue his claims in September 2016. As Sperow filed his Complaint years after the

statute of limitations expired, his claims based on the seizures of his property and the searches
that led to those seizures are clearly time-barred.4 See e.g., Barren, 607 F. App’x at 132 (claims
filed in 2014 based on searches and seizures of property in 2003 were time-barred because

4 Even if the Complaint could be understood to suggest that Sperow was unaware of the October
16, 2015 search and seizure until he received receipts reflecting the confiscated property on July
18, 2017 and August 7, 2017, (ECF No. 2 at 29), his Complaint is still untimely as to those
searches and seizures because it was filed more than two years after he knew of the basis for his
claims. Additionally, although the Court does not read Sperow’s Complaint as raising claims
based on his arrests, any such claims would also be time barred. See Montgomery v. De Simone,
159 F.3d 120, 126 (3d Cir. 1998) (“[T]he two-year limitation period for Montgomery’s section
1983 false arrest and false imprisonment claims began to run on . . . the night of Montgomery’s
arrest and detention.”).
plaintiff “knew or reasonably should have known that he was injured by the allegedly unlawful
searches and seizures at the time they occurred”) (per curiam); Estate of Lagano v. Bergen Cty.
Prosecutor’s Office, 769 F.3d 850, 861 (3d Cir. 2014) (illegal search and seizure claims filed in
2011 were time barred when the search occurred in 2004 and the record demonstrated that the

plaintiff “knew about the allegedly unlawful search and seizure by March 2005 at the latest, and
thus had a complete cause of action at that time”); Francis v. Miligan, 530 F. App’x 138, 139 (3d
Cir. 2013) (per curiam) (claims were time-barred when pro se litigant filed complaint more than
two years after he knew “his car had been searched without his consent and that his property had
been seized”). Accordingly, the Court will dismiss all Sperow’s claims based on the seizure of
his property and the related searches.5
All that remain are Sperow’s claims based on the failure to return his property or to
permit him to transfer the property to a third party. These claims are also time-barred. The
Complaint alleges in detail the numerous specific steps taken by Sperow over the course of

5 To the extent Sperow alleges that the seizure of his property somehow resulted in the violation
of his right to counsel in his criminal cases, a civil rights plaintiff may not raise claims
challenging the validity of a conviction unless that conviction has been reversed or otherwise
invalidated, and claims subject to that rule do not accrue until “favorable termination” is
achieved. See Heck v. Humphrey, 512 U.S. 477, 486–87 (1994) (“[I]n order to recover damages
for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must
prove that the conviction or sentence has been reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized to make such determination, or called into
question by a federal court's issuance of a writ of habeas corpus.”) (internal citation and footnote
omitted); Curry v. Yachera, 835 F.3d 373, 379 (3d Cir. 2016) (“[T]he statute of limitations
begins to accrue when the termination of criminal proceedings becomes favorable; that is, when
‘the conviction or sentence is reversed, expunged, invalidated, or impugned by the grant of a writ
of habeas corpus.’” (quoting Heck, 512 U.S. at 489)). However, regardless of both Heck and the
statute of limitations, this claim is baseless because it is apparent Sperow had the benefit of
counsel in his criminal cases and his Complaint does not plausibly connect the seizure of his
firearms to a constitutional deficiency in his criminal proceeding.
several years to retrieve or transfer possession of his firearms, including visiting the Sheriff’s
Department (id. at 22), obtaining permission from the Probation Department in 2015 to transfer
possession of his firearms based on a notarized document from his designee, (id. at 23), writing
letters, (id. at 34-38), and filing a motion in state court for the return of property in 2016, (id. at

30). When Sperow’s motion was denied, he pursued appeals in the state courts, unsuccessfully,
which were finally resolved in 2017. (Id. at 36.) In connection with those state-court
proceedings, Sperow argued that the Defendants possessed his property “without due process or
justification of the law” and that he “had attempted to retrieve/transfer his property for quite
some time after it had been confiscated . . . but he was always met with ‘no-response’ by both
state offices.’” (Id. at 31.)
Sperow alleges that on August 7, 2017 he received a complete list of property seized in
2015, and that on August 10, 2017, his designee was permitted to retrieve certain items, which
did not include the seized firearms. (Id. at 34-35.) On October 14, 2017, Sperow received a list
of all firearms that had been confiscated. (Id. at 36-37.) Following subsequent correspondence,

he received a letter on January 22, 2018 stating that he was ineligible to possess his firearms and
that they would not be returned to him nor would he be permitted to transfer them to a third
party. (Id. at 37.) On January 25, 2018, Sperow wrote another letter to which he attached two
“documents which showed that he had been trying to retrieve/transfer his firearms . . . long
before [he] received any charge which rendered him ineligible from possessing a firearm, and
thus, his firearms are eligible to be transferred to [his] POA without further litigation.” (Id. at
38.) Sperow received a response to that letter on April 19, 2018, which indicates his firearms
would not be returned. (Id.)
It is apparent from Sperow’s allegations that he knew or should have known of the
Defendants’ refusal to return or transfer possession of his property more than two years before he
filed his Complaint in the instant civil action in March 2020. Sperow was sufficiently aware of
his injuries to file a motion for return of property in state court in 2016 and to pursue appeals

through 2017. It is apparent, then, that he also could have pursued any related § 1983 claims at
that time as he had a complete cause of action and knowledge of the relevant facts. See
McCreary v. Redevelopment Auth. of City of Erie, 427 F. App’x 211, 215 (3d Cir. 2011) (per
curiam) (rejecting argument that “federal claims should not be deemed to have accrued until
[plaintiff] learned that the state courts would not ‘provide due process’ on her challenge to the
Authority’s decision to reclaim the property”).
Nor is there a basis for tolling here. To the extent Sperow might argue for tolling because
he not have a complete list of the items seized, he had sufficient information to understand that
certain of his property had been confiscated and that he had been harmed by the seizure; in any
event, he had the entire list of that property in 2017. Furthermore, some of his property was

transferred to a designee on August 10, 2017, so any claims related to that property had been
fully resolved by that date. The correspondence in January 2018 again confirmed that the
firearms would not be returned. Surely then, Sperow was well-aware of the events giving rise to
his claims and his injuries more than two years before he filed the instant lawsuit. Accordingly,
his claims are time-barred. See, e.g., Shalhoub v. Depreta, 439 F. App’x 106, 108 (3d Cir. 2011)
(per curiam) (tolling did not apply because if plaintiff had proceeded with reasonable diligence
after serving his sentence, “he would have realized soon thereafter that the defendants—despite
the promises that they had allegedly made—did not intend to return his property”); Shaffer v.
York Cty., Pennsylvania, Civ. A. No. 09-CV-1315, 2009 WL 10716285, at *3 (M.D. Pa. Oct. 8,
2009) (second amendment claims were time-barred because “[a]lthough the plaintiff began
efforts to have his firearm permit returned to him, and was denied a return of his permit for some
period of time, it is clear that his complaint alleges on Second Amendment grounds that the
revocation of his permit that occurred more than two years before his complaint was filed as his

cause of action.”).
The continuing violation doctrine also does not save Sperow’s claims. “Under that
doctrine ‘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.’” Montanez
v. Sec’y Pennsylvania Dep't of Corr., 773 F.3d 472, 481 (3d Cir. 2014) (quoting Colwell v.
Palmer Twp., 263 F.3d 286, 292 (3d Cir. 2001)). However, “the continuing violation doctrine
does not apply when the plaintiff ‘is aware of the injury at the time it occurred.’” Id. (quoting
Morganroth & Morganroth v. Norris, McLaughlin & Marcus, P.C., 331 F.3d 406, 417 n.6 (3d
Cir. 2003). Additionally, “a ‘continuing violation is occasioned by continual unlawful acts, not
continual ill effects from an original violation.’” Id. (quoting Weis-Buy Servs., Inc. v. Paglia,

411 F.3d 415, 423 (3d Cir. 2005)).
The only act alleged within the limitations period is that an attorney for the Sheriff’s
Department responded to one of Sperow’s letters reiterating that his firearms would not be
returned. (ECF No. 2 at 38.) But that was after the lengthy, years-long back and forth about the
firearms, unsuccessful litigation in state court about the issue, and correspondence in January
2018 (more than two years before Sperow’s Complaint was filed) stating that the Sheriff’s
Department would not relinquish the firearms to Sperow nor allow him to transfer them to a
designee. Accordingly, the letter that Sperow received on April 19, 2018, within the limitations
period, represents a continual ill effect from the original violation, i.e., the refusal to return the
firearms or permit their transfer. See Andrews v. Borough of Collingdale, 329 F. App’x 373, 376
(3d Cir. 2009) (per curiam) (continuing violation doctrine did not save time-barred claims where
“[t]he mere fact that [appellants] continued to be affected by the repercussions of these initial
acts does not render their claims regarding these earlier actions timely”); see also Gould v.

Borough, 615 F. App’x 112, 117 (3d Cir. 2015) (state court litigation did not delay accrual date
of claims because “adverse appellate decisions do not reflect ‘continual unlawful acts’ by
defendants but rather ‘continual ill effects’ of their alleged misconduct.”).6 The Defendants
actions also had a degree of permanence more than two years before Sperow filed his Complaint
such that he should have been aware of a duty to assert his rights, as reflected by his filing of a
motion for return of property in state court. See Wisniewski, 857 F.3d at 158 (“[W]e agree that
the District Court properly concluded that the continuing violations doctrine does not apply to
Wisniewski’s claims, as defendants’ actions ‘had a degree of permanence which should trigger
[his] awareness of and duty to assert his[ ] rights.’” (quoting Cowell, 263 F.3d at 292 (alterations
in original).

In sum, Sperow knew or should have known of the basis for his claims more than two
years before he filed his Complaint. Accordingly, his § 1983 claims are all time-barred.
B. State Law Claims
Sperow also raises claims under Pennsylvania law. However, 28 U.S.C. § 1332(a)
provides the only independent basis for this Court’s jurisdiction over those claims.7 That

6 To the extent Sperow raises due process claims based on how his motion for return of property
and related appellate proceedings were handled, not only are those claims time-barred, but it is
not clear how judges’ resolution of these matters is attributable to the Defendants.

7 The Court will not exercise supplemental jurisdiction over those claims, having dismissed all
federal claims.
provision grants a district court jurisdiction over “all civil actions where the matter in
controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between
. . . citizens of different States.” An individual is a citizen of the state where he is domiciled,
meaning the state where he is physically present and intends to remain. See Washington v.

Hovensa LLC, 652 F.3d 340, 344 (3d Cir. 2011). “[T]he domicile of a prisoner before his
imprisonment presumptively remains his domicile during his imprisonment.” Pierro v. Kugel,
386 F. App’x 308, 309 (3d Cir. 2010). The Complaint suggests that Sperow and some, if not all,
of the Defendants are Pennsylvania citizens. Accordingly, complete diversity is lacking, and
these claims will be dismissed for lack of subject matter jurisdiction.
IV. CONCLUSION
For the foregoing reasons, the Court will grant Sperow leave to proceed in forma
pauperis, dismiss his federal claims as time-barred pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), and
dismiss his state claims for lack of subject matter jurisdiction. Sperow will not be given leave to
amend because amendment would be futile. An appropriate Order follows.

BY THE COURT:

/S/ JOHN R. PADOVA
__________________________________________
JOHN R. PADOVA, J.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10398929. Public record. Not legal advice.