MOORE v. MERCADO

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LINDELL MOORE and LAVETA :

MOORE, :

:

Plaintiffs, : CIVIL ACTION NO. 21-4100

:

v. :

:

STEPHANIE AND OSCAR MORRISON, :

:

Defendants. :

MEMORANDUM OPINION

Smith, J. March 18, 2022

The pro se plaintiffs, a husband and wife, have sought leave to proceed in forma pauperis

in this action brought under 42 U.S.C. § 1983, in which they challenge the removal of their children

from their home in January 2017. Although the court will permit the plaintiffs to proceed in forma

pauperis, the court will dismiss the complaint with prejudice because the plaintiffs’ allegations are

time-barred. More specifically, the plaintiffs’ allegations show that they were aware of the removal

of their children more than four years prior to filing this action. As the statute of limitations to

bring this section 1983 action is two years, they are more than two years late in filing the action.

They have also failed to show that the court should apply equitable tolling. Accordingly, the court

will dismiss this action with prejudice.

I. ALLEGATIONS AND PROCEDURAL HISTORY

The pro se plaintiffs, Lindell Moore (“Mr. Moore”) and Laveta Moore (“Mrs. Moore”),

initiated this action by filing an application for leave to proceed in forma pauperis (the “IFP

Application”) and a complaint on September 14, 2021. See Doc. Nos. 1, 2. Although it appeared

that both plaintiffs were attempting to proceed in forma pauperis and were prosecuting the

complaint, Mr. Moore was the only plaintiff who signed both documents. Due to this deficiency,

the court entered an order on September 30, 2021, which directed Mrs. Moore to complete and

return a declaration with her original signature if she wanted her claims to be considered in this

case. See Doc. No. 4. Mrs. Moore complied with the order by filing a declaration of original

signature on October 4, 2021. See Doc. No. 5.

Several weeks later, Mrs. Moore submitted an amended complaint. See Doc. No. 6. The

amended complaint was signed only by Mrs. Moore, so the court entered an order on November

19, 2021, which directed Mr. Moore to complete and return a declaration with his original signature

if he wanted his claims to be considered in the case.1 See Doc. No. 7. Mr. Moore submitted a

declaration of original signature on December 16, 2021. See Doc. No. 9.

With regard to the amended complaint, the plaintiffs name Stephanie Morrison and Oscar

Morrison as defendants. See Am. Compl. at ECF p. 1, Doc. No. 6. The plaintiffs appear to be

challenging the removal of their children from their care and custody in January 2017.2 See id. at

1 In this order, the court also explained to the plaintiffs that this amended complaint would serve as the governing

pleading in the case because it superseded the original complaint. See Nov. 19, 2021 Order at 1 n.1 (citing Shahid v.

Borough of Darby, 666 F. App’x 221, 223 n.2 (3d Cir. 2016) (per curiam) and Garrett v. Wexford Health, 938 F.3d

69, 82 (3d Cir. 2019)).

2 Unfortunately, the plaintiffs include allegations which provide a lack of clarity as to when their children were

removed from their care. In the handwritten allegations, the plaintiffs allege that the events giving rise to their claims

occurred in “9/2016,” yet they also appear to claim that the children were given to a family member in January 2017.

See Am. Compl. at ECF p. 4. For purposes of this opinion, the court presumes that the latter date, January 2017, is the

relevant date.

In addition, this is not the first civil action that Mr. Moore has filed regarding the removal of his children

from his care and custody. In December 2019, Mr. Moore filed a complaint pursuant to 42 U.S.C. § 1983, similarly

challenging the removal of his children by a county office of Children & Youth. See Moore v. Pennsylvania, Civ. A.

No. 19-5908 (E.D. Pa.). In that case, Moore named several defendants, including the two defendants named in this

action, seeking monetary damages and the return of his children. See Compl. at ECF pp. 3, 4, Moore v. Pennsylvania,

Civ. A. No. 19-5908 (E.D. Pa.), Doc. No. 2. After screening the complaint pursuant to 28 U.S.C. § 1915(e)(2) (as Mr.

Moore was seeking to proceed in forma pauperis), the court determined that Mr. Moore failed to state a plausible

claim against any defendants and dismissed the complaint without prejudice to Mr. Moore to file an amended

complaint to the extent he could allege a plausible claim. See generally Jan. 23, 2020 Mem. Op., Moore v.

Pennsylvania, Civ. A. No. 19-5908 (E.D. Pa.), Doc. No. 5; Jan. 23, 2020 Order, Moore v. Pennsylvania, Civ. A. No.

19-5908 (E.D. Pa.), Doc. No. 6. Moore never filed an amended complaint, and the court dismissed the action without

prejudice for the failure to prosecute on February 27, 2020. See Feb. 27, 2020 Order, Moore v. Pennsylvania, Civ. A.

No. 19-5908 (E.D. Pa.), Doc. No. 7.

ECF p. 4. The factual allegations in support of this challenge, however, are sparse. The plaintiffs

allege that in January 2017, their children were “given to” relatives whom they contend do “not

qualify for ‘kinship’ care because of the toxic relationship that existed before plaintiffs ever had

[their] children.” Id. The plaintiffs state that “[i]t has been 6 years, and although [they have] made

many complaints, [those complaints] never came through.” Id. They also aver that the defendants

are “well aware of Plaintiffs[’] mental disabilities” and “used those factors against the Plaintiff[s].”

Id. at ECF p. 5. The plaintiffs request that the court award them $25 million for “the pain and

suffering that [their] family went through.” Id.

II. DISCUSSION

A. The IFP Application

Regarding applications to proceed in forma pauperis,

any court of the United States may authorize the commencement, prosecution or

defense of any suit, action or proceeding, civil or criminal, or appeal therein,

without prepayment of fees or security therefor, by a person who submits an

affidavit that includes a statement of all assets such prisoner possesses that the

person is unable to pay such fees or give security therefor.

28 U.S.C. § 1915(a)(1). This statute

“is designed to ensure that indigent litigants have meaningful access to the federal

courts.” Neitzke v. Williams, 490 U.S. 319, 324, 109 S.Ct. 1827, 104 L.Ed.2d 338

(1989). Specifically, Congress enacted the statute to ensure that administrative

court costs and filing fees, both of which must be paid by everyone else who files

a lawsuit, would not prevent indigent persons from pursuing meaningful litigation.

Deutsch[ v. United States, 67 F.3d 1080, 1084 (3d Cir. 1995)]. Toward this end, §

1915(a) allows a litigant to commence a civil or criminal action in federal court in

[sic] forma pauperis by filing in good faith an affidavit stating, among other things,

that he is unable to pay the costs of the lawsuit. Neitzke, 490 U.S. at 324, 109 S.Ct.

1827.

Douris v. Middletown Twp., 293 F. App’x 130, 131–32 (3d Cir. 2008) (per curiam) (footnote

omitted).

The litigant seeking to proceed in forma pauperis must establish that the litigant is unable

to pay the costs of suit. See Walker v. People Express Airlines, Inc., 886 F.2d 598, 601 (3d Cir.

1989) (“Section 1915 provides that, in order for a court to grant in forma pauperis status, the

litigant seeking such status must establish that he is unable to pay the costs of his suit.”). “In this

Circuit, leave to proceed in forma pauperis is based on a showing of indigence. [The court must]

review the affiant’s financial statement, and, if convinced that he or she is unable to pay the court

costs and filing fees, the court will grant leave to proceed in forma pauperis.” Deutsch, 67 F.3d at

1084 n.5 (internal citations omitted).

Here, after reviewing the IFP Application, it appears that the plaintiffs are unable to pay

the costs of suit. Therefore, the court will grant them leave to proceed in forma pauperis.

B. Standard of Review – Screening of Complaint Under 28 U.S.C. § 1915

Because the court has granted the plaintiffs leave to proceed in forma pauperis, the court

must engage in the second part of the two-part analysis and examine whether the complaint is

frivolous, malicious, fails to state a claim upon which relief can be granted, or asserts a claim

against a defendant immune from monetary relief. See 28 U.S.C. § 1915(e)(2)(B)(i)–(iii)

(providing that “[n]otwithstanding any filing fee, or any portion thereof, that may have been paid,

the court shall dismiss the case at any time if the court determines that-- . . . (B) the action or

appeal—(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or

(iii) seeks monetary relief against a defendant who is immune from such relief”). A complaint is

frivolous under section 1915(e)(2)(B)(i) if it “lacks an arguable basis either in law or fact,” Neitzke,

490 U.S. at 325, and is legally baseless if it is “based on an indisputably meritless legal theory.”

Deutsch, 67 F.3d at 1085. As for whether a complaint is malicious,

[a] court that considers whether an action is malicious must, in accordance with the

definition of the term “malicious,” engage in a subjective inquiry into the litigant’s

motivations at the time of the filing of the lawsuit to determine whether the action

is an attempt to vex, injure or harass the defendant.

Id. at 1086. “[A] district court may dismiss a complaint as malicious if it is plainly abusive of the

judicial process or merely repeats pending or previously litigated claims.” Brodzki v. CBS Sports,

Civ. No. 11-841, 2012 WL 125281, at *1 (D. Del. Jan. 13, 2012).

Concerning the analysis under section 1915(e)(2)(B)(ii), the standard for dismissing a

complaint for failure to state a claim pursuant to this subsection is identical to the legal standard

used when ruling on motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). See

Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999) (applying Rule 12(b)(6) standard to

dismissal for failure to state claim under section 1915(e)(2)(B)). Thus, to survive dismissal, “a

complaint must contain 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) (quoting Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). The plaintiff’s factual allegations “must be enough to raise

a right to relief above the speculative level.” Twombly, 550 U.S. at 556 (citation omitted).

In addressing whether a pro se plaintiff’s complaint fails to state a claim, the court must

liberally construe the allegations set forth in the complaint. See Higgs v. Attorney Gen., 655 F.3d

333, 339–40 (3d Cir. 2011) (explaining that “when presented with a pro se litigant, we have a

special obligation to construe his complaint liberally” (citation and internal quotation marks

omitted)). While the court must liberally construe pro se pleadings, “liberal construction of a pro

se amended complaint does not mean accumulating allegations from superseded pleadings.”

Argentina v. Gillette, 778 F. App’x 173, 175 n.3 (3d Cir. 2019) (per curiam). “Therefore, as a

practical matter, the filing of amended and supplemental complaints effectively constitutes an

abandonment of any prior complaints filed by a plaintiff.” Smith v. Price, Civ. No. 3:11-CV-1581,

2012 WL 1068159, at *4 (M.D. Pa. Mar. 5, 2012), report and recommendation adopted, Civ. No.

11-1581, 2012 WL 1072282 (M.D. Pa. Mar. 29, 2012).3

Additionally, the court may dismiss claims based on an affirmative defense if the

affirmative defense is obvious from the face of the complaint. Peele v. McLaughlin, 641 F. App’x

111, 112 (3d Cir. 2016) (per curiam) (explaining that even though “the statute of limitations is an

affirmative defense [under Rule 8(c) of the Federal Rules of Civil Procedure], a district court may

sua sponte dismiss a complaint under § 1915(e) where the defense is obvious from the complaint

and no development of the factual record is required”); Fogle v. Pierson, 435 F.3d 1252, 1258

(10th Cir. 2006) (“A complaint may be dismissed sua sponte under § 1915 based on an affirmative

defense—such as statute of limitations—only when the defense is obvious from the face of the

complaint and no further factual record is required to be developed.” (citation and internal

quotation marks omitted)); cf. Ball v. Famiglio, 726 F.3d 448, 459 (3d Cir. 2013) (explaining that

if affirmative defense appears on face of complaint, court can dismiss complaint under Rule

12(b)(6)), abrogated on other grounds by Coleman v. Tollefson, 575 U.S. 532 (2015).

C. Analysis

With respect to the removal of their children from their care, the plaintiffs seek relief in

this case under 42 U.S.C. § 1983. See Am. Compl. at ECF p. 2. This statute provides in pertinent

part as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or Territory or the District of Columbia, subjects, or causes to

be subjected, any citizen of the United States or other person within the jurisdiction

thereof 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[.]

3 As the amended complaint is the governing pleading, the court will direct the clerk of court to terminate the following

individuals as defendants in this matter; Ceasar Mercado, Edwin Rodriguez, Nell Solaski, and Paula Griffin, as it

appears the plaintiffs have abandoned their claims against them.

42 U.S.C. § 1983. When attempting to establish a claim under section 1983, a plaintiff must allege

and prove that a “person” deprived the plaintiff of a constitutional right while acting under color

of state law. See West v. Atkins, 487 U.S. 42, 49 (1988) (“To state a claim under § 1983, a plaintiff

must allege the violation of a right secured by the Constitution and laws of the United States, and

must show that the alleged deprivation was committed by a person acting under color of state

law.”).

Although the plaintiffs do not set forth many, if any, allegations in the amended complaint

to describe what action (or inaction) the defendants took which caused a violation of the plaintiffs’

constitutional rights,4 it is clear that the plaintiffs seek to raise civil rights claims arising from the

removal of their children in January 2017 and their placement in kinship care. See Am. Compl. at

4 While the amended complaint is not explicitly clear in this regard, the court interprets the allegations therein to

suggest that the defendants are likely serving as foster parents to the plaintiffs’ children. The plaintiffs do not allege

that they work with Children & Youth or any other state-related service; instead, the plaintiffs have indicated that

Stephanie Morrison has a job with Lehigh Valley Health Network and Oscar Morrison works for the Post Office. To

the extent that the court’s interpretation is accurate, the plaintiffs fail to state a plausible claim against the defendants

because they would not be state actors liable under section 1983.

In this regard,

[t]he color-of-state-law requirement is a threshold issue; “there is no liability under § 1983 for those

not acting under color of law.” Groman v. Township of Manalapan, 47 F.3d 628, 638 (3d Cir.1995).

To show that the defendant acted under color of state law, a litigant must establish that the defendant

is a “state actor” under the Fourteenth Amendment. Benn v. Universal Health System, Inc., 371 F.3d

165, 169 n. 1 (3d Cir.2004).

Bailey v. Harleysville Nat’l Bank & Trust, 188 F. App’x 66, 67 (3d Cir. 2006) (per curiam).

The “touchstone” of the state-action inquiry centers on the proposition that “state action may be found if,

though only if, there is such a close nexus between the [s]tate and the challenged action that seemingly private behavior

may be fairly treated as that of the [s]tate itself.” P.R.B.A. Corp. v. HMS Host Toll Rds., Inc., 808 F.3d 221, 224 (3d

Cir. 2015) (internal quotation marks and citations omitted). The Third Circuit has

outlined three broad tests generated by Supreme Court jurisprudence to determine whether state

action exists:

(1) whether the private entity has exercised powers that are traditionally the exclusive prerogative

of the state; (2) whether the private party has acted with the help of or in concert with state officials;

and (3) whether the [s]tate has so far insinuated itself into a position of interdependence with the

acting party that it must be recognized as a joint participant in the challenged activity.

Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009) (internal quotation marks and citation omitted).

Presuming that the court’s interpretation is correct, the defendants do not appear to be state actors under any

of the aforementioned tests, and the plaintiffs have not alleged that they had any connection to the state.

ECF pp. 4–5. Understanding their claim as such, they have an insurmountable issue with the

applicable statute of limitations.

All section 1983 claims are subject to the applicable state’s statute of limitations for

personal injury actions. See Wallace v. Kato, 549 U.S. 384, 387 (2007) (concluding that statute of

limitations for section 1983 actions “is governed by the personal injury tort law of the state where

the cause of action arose”). Since the plaintiffs’ claims arose in Pennsylvania, the court applies

Pennsylvania’s relevant limitations period, which in this case is two years. See Wisniewski v.

Fisher, 857 F.3d 152, 157 (3d Cir. 2017) (stating that “[t]he statute of limitations applicable to §

1983 claims in Pennsylvania is two years” (citation omitted)). This two-year limitations period

accrues “when a plaintiff has a complete and present cause of action, that is, when [the plaintiff]

can file suit and obtain relief.” Dique v. N.J. State Police, 603 F.3d 181, 185 (3d Cir. 2010)

(quotation marks and citation omitted). In general, this means that the statute of limitations

“accrues when the plaintiff knew or should have known of the injury upon which [the plaintiff’s]

action is based.” Sameric Corp. of Del., Inc. v. City of Philadelphia, 142 F.3d 582, 599 (3d Cir.

1998).

Here, since the amended complaint makes clear on its face that the plaintiffs knew at the

time in January 2017 that their children were initially removed from their care and placed into

kinship care, see Am. Compl. at ECF p. 4, their claims related to the removal of their children

started accruing at that time and must have been raised by January 2019. See Bennett v.

Susquehanna Cty. Children & Youth Servs., 592 F. App’x 81, 83 (3d Cir. 2014) (“Bennett’s cause

of action for all claims accrued at the time of the alleged unlawful seizure and withholding of her

two minor children on November 18, 2009. Bennett did not file suit until September 25, 2012, well

beyond the two year limit.” (internal footnote omitted)). Because the plaintiffs did not file the

initial complaint in this case until September 14, 2021, several years after the statute of limitations

expired, any claims are untimely unless the court would find a basis to toll the limitations period

under federal equitable tolling principles.5

The court finds that there is no basis for equitable tolling here. The amended complaint

shows that the plaintiffs knew or should have known of the events giving rise to their claims and

their related injuries at the time the claims accrued and there is no suggestion (via specific factual

allegations) that the plaintiffs were actively misled by a defendant about their claim, an

extraordinary circumstance prevented them from filing it timely, or the claim was timely presented

in an incorrect forum. See Lloyd v. Ocean Twp. Counsel, 857 F. App’x 61, 64 (3d Cir. 2021) (per

curiam) (explaining that equitable tolling for federal civil rights claim “is generally appropriate

where: (1) a defendant actively misleads a plaintiff regarding a cause of action; (2) a plaintiff has

been prevented from asserting a claim as a result of other extraordinary circumstances; or (3) a

plaintiff has timely asserted her claims, but in the wrong forum” (citing Lake v. Arnold, 232 F.3d

360, 370 n.9 (3d Cir. 2000))).6

5 In his earlier case, Mr. Moore alleged that the children were removed in September 2018. See Compl. at ECF p. 5,

Moore v. Pennsylvania, Civ. A. No. 19-5908 (E.D. Pa.), Doc. No. 2. Even if the court were to presume that the

September 2018 removal date is the correct date, then the plaintiffs’ claims would have accrued at that time and should

have been brought no later than September 2020. Thus, any claims would still be time-barred because the plaintiffs

did not file this action under September 2021.

6 The court recognizes that the plaintiffs assert that they have mental disabilities (although they do not indicate the

nature of those disabilities). See Am. Compl. at ECF p. 5. In the habeas context, mental competence can operate as an

extraordinary circumstance warranting the application of equitable tolling. See Nara v. Frank, 264 F.3d 310, 320 (3d

Cir. 2001), overruled on other grounds by Carey v. Saffold, 536 U.S. 214 (2002). Yet, “mental incompetence is not a

per se reason to toll a statute of limitations.” Id. Instead, “[t]he alleged mental incompetence must somehow have

affected the petitioner’s ability to file a timely habeas petition.” Id.

Here, while the plaintiffs claim to have mental disabilities, they do not allege that they are mentally

incompetent. More importantly, there are no allegations as to how the plaintiffs’ mental disabilities somehow affected

their ability to timely file a complaint relating to the removal of their children in January 2017.

III. CONCLUSION

For the foregoing reasons, the court will grant the IFP Application and dismiss the amended

complaint with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim.7

The court will enter a separate order.

BY THE COURT:

/s/ Edward G. Smith

EDWARD G. SMITH, J.

7 A district court should generally provide a pro se plaintiff with leave to amend unless amending would be inequitable

or futile. See Grayson v. Mayview St. Hosp., 293 F.3d 103, 114 (3d Cir. 2002) (stating general rule). Also, “in civil

rights cases district courts must offer amendment—irrespective of whether it is requested—when dismissing a case

for failure to state a claim unless doing so would be inequitable or futile.” Fletcher-Harlee Corp. v. Pote Concrete

Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007). Here, the court finds that any amendment would be futile because

the plaintiffs’ claims are time-barred. See Vaughn v. Markey, 813 F. App’x 832, 833 (3d Cir. 2020) (per curiam)

(affirming dismissal of complaint without leave to amend because amendment would have been futile as claims were

time-barred).