# Doe v. City of Wilkes-Barre

> District Court, M.D. Pennsylvania · August 19, 2021

URL: https://www.frixlaw.com/law-library/cases/10410593

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** August 19, 2021
- **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/10410593

## How later opinions describe it (automated extraction)

- holding continuing violations doctrine applied to a plaintiff’s §1983 claim

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA

J. DOE and R.A. DOE, :

Plaintiffs : CIVIL ACTION NO. 3:19-938

v. : (JUDGE MANNION)

CITY OF WILKES-BARRE, :
ROBERT COLLINS, and
JOHN/JANE DOE 1-5, :

Defendants :

MEMORANDUM
Pending before this court is a motion to dismiss Plaintiffs’ complaint
filed on behalf of Defendant Robert Collins. (Doc. 30). Based upon the court’s
review of the motion and related materials, Collins’s motion will be
GRANTED IN PART AND DENIED IN PART.

I. BACKGROUND
Plaintiffs in this case allege that they are sexual assault victims of
Collins, a police officer previously employed by the City of Wilkes-Barre, who
committed the assaults during his employment, under color of state law.
Plaintiff J. Doe alleges that Collins assaulted her on numerous occasions
between 2012 and 2019. Plaintiff R.A. Doe alleges that Collins assaulted her
on numerous occasions between 2009 and 2014. Both Plaintiffs have
brought §1983 claims under the Fourth and Fourteenth Amendments to the

United States Constitution, as well as state law tort claims against Collins,
and a Monell1 claim against the City of Wilkes-Barre.
In support of his Rule 12(b)(6) motion, Collins argues that: (1) the two-

year statute of limitations time-bars all of R.A. Doe’s claims; (2) the two-year
statute of limitations time-bars J. Doe’s claims that predate May 31, 2017;
and (3) the more-specific provision rule bars all Fourth and Fourteenth
Amendment claims. (Doc. 30). Additionally, Collins moves for Plaintiffs to

proceed as named litigants. (Doc. 30).
By way of relevant procedural background, on June 5, 2019, the other
named defendant in this case, the City of Wilkes-Barre, filed a similar Rule

12(b)(6) motion. (Doc. 4; Doc. 11). Therein, the City of Wilkes-Barre raised
two of the same arguments pending before this Court regarding: (1) all of
R.A. Doe’s claims being time-barred; and (2) both Plaintiffs’ Fourth and
Fourteenth Amendment claims being barred by the more-specific provision

rule. (Doc. 4; Doc. 11). By way of a Memorandum and Order dated March
30, 2021, this Court granted the City of Wilkes-Barre’s motion to dismiss all
of R.A. Doe’s claims as time-barred. (Doc. 35; Doc. 36). In the same

1 Monell v. Department of Social Servs., 436 U.S. 658 (1978).
Memorandum and Order, this Court denied the City of Wilkes-Barre’s motion
to dismiss Plaintiff J. Doe’s Fourteenth Amendment claims, finding J. Doe

pled sufficient facts to plausibly give rise to entitlement to relief at this stage.
(Doc. 35; Doc. 36).

II. STANDARD OF REVIEW
Collins’s motion to dismiss is brought pursuant to Fed.R.Civ.P.
12(b)(6). Rule 12(b)(6) allows for dismissal of a complaint with prejudice, in

whole or in part, where the plaintiff fails to state a claim upon which relief can
be granted. Fed.R.Civ.P.12(b)(6). To prevail on a Rule 12(b)(6) motion, the
defendant bears the burden of establishing that the plaintiff failed to plead

“enough facts to state a claim to relief that is plausible on its face.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Hedges v. United States,
404 F.3d 744, 750 (3d Cir. 2005). “When there are well-pleaded factual
allegations, a court should assume their veracity and then determine whether

they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S.
662, 679 (2009). Further, “[t]he complaint must state enough facts to raise a
reasonable expectation that discovery will reveal evidence of [each]

necessary element” of a plaintiff’s claim. Wilkerson v. New Media Tech.
Charter Sch. Inc., 522 F.3d 315, 321 (3d Cir. 2008).
III. DISCUSSION

A. Timeliness of Claims
In reviewing the applicability of the statute of limitations to an action

filed pursuant to §1983, a federal court must apply the appropriate state
statute of limitations which governs personal injury actions. Wilson v. Garcia,
471 U.S. 261, 276 (1985); Urrutia v. Harrisburg Cnty. Police Dept., 91 F.3d
451, 457 n. 9 (3d Cir. 1996); Cito v. Bridgewater Twp. Police Dept., 892 F.2d

23, 25 (3d Cir. 1989). Pennsylvania’s applicable personal injury statute of
limitations is two years. See 42 Pa.Cons.Stat.Ann. §5524(7) (Purdon Supp.);
Kost v. Kozakiewicz, 1 F.3d 176, 190 (3d Cir. 1993); Smith v. City of

Pittsburgh, 764 F.2d 188, 194 (3d Cir.), cert denied, 474 U.S. 950 (1985).
While the Third Circuit permits statute of limitations defenses to be raised
under a Rule 12(b)(6) motion, such a motion to dismiss may be granted “only
when the statute of limitations defense is apparent on the face of the

complaint.” Wisniewski v. Fisher, 857 F.3d 152, 157 (3d Cir. 2017) (citing
Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014)).
Federal law governs a cause of action’s accrual date. Genty v.

Resolution Trust Corp., 937 F.2d 899, 919 (3d Cir. 1991). Under federal law,
a cause of action accrues, and the statute of limitations begins to run, “when
the plaintiff knew or should have known of the injury upon which its action is
based.” Sameric Corp. v. City of Philadelphia, 142 F.3d 582, 599 (3d Cir.

1998) (citation omitted); see also Montgomery v. De Simone, 159 F.3d 120,
126 (3d Cir. 1998). The determination of the time at which a claim accrues
is an objective inquiry; we ask not what the plaintiff actually knew but what a

reasonable person should have known. Barren v. United States, 839 F.2d
987, 990 (3d Cir. 1988). As a general matter, a cause of action accrues at
the time of the last event necessary to complete the tort, usually at the time
the plaintiff suffers an injury. See United States v. Kubrick, 444 U.S. 111, 120

(1979). “The cause of action accrues even though the full extent of the injury
is not then known or predictable. Were it otherwise, the statute would begin
to run only after a plaintiff became satisfied that he had been harmed

enough, placing the supposed statute of repose in the sole hands of the party
seeking relief.” Wallace v. Kato, 549 U.S. 384, 391 (2007). “[C]ontinuing
conduct of [a] defendant will not stop the ticking of the limitations clock begun
when plaintiff obtained requisite information. On discovering an injury and its

cause, a claimant must choose to sue or forego that remedy.” Kichline v.
Consolidated Rail Corp., 800 F.2d 356, 360 (3d Cir. 1986) (citing Fowkes v.
Pennsylvania R.R. Co., 264 F.2d 397 (3d Cir. 1959)).
1. Timeliness of R.A. Doe’s Claims

Collins argues that R.A. Doe admits in the Complaint that all alleged
assaults committed against her occurred between 2009 and 2014, outside
the statutory window. (Doc. 1; Doc. 31). Thus, Collins argues that all of R.A.

Doe’s claims in Counts I and IV through IX of the Complaint are barred by
the two-year statute of limitations and must be dismissed with prejudice.
(Doc. 31).
Counsel for Plaintiffs concedes that the statute of limitations time-bars

all of R.A. Doe’s claims, referencing this Court’s March 30, 2021
Memorandum and Order granting Defendant City of Wilkes-Barre’s motion
to dismiss all of her claims. (Doc. 35; Doc. 36; Doc. 38).

Here, because the applicable statute of limitations is two years and all
of R.A. Doe’s claims occurred more than five years prior to filing suit,
Collins’s statute of limitations defense is apparent on the face of R.A. Doe’s
Complaint. See §5524(7); Wisniewski, 857 F.3d at 157; Fox v. Lackawanna

Cnty., No. 3:16-CV-1511, 2017 WL 5007905, at *2 (M.D.Pa. Nov. 2, 2017)
(granting defendants’ Rule 12(b)(6) motion to dismiss two plaintiffs’ claims
where all claims fell outside the statutory window, making it clear from the

face of the complaint that their causes of action were untimely filed). In line
with this Court’s March 30, 2021 Memorandum and Order, all of R.A. Doe’s
claims will be dismissed with prejudice. (See Doc. 35; Doc. 36; Doc. 38).

2. Timeliness of J. Doe’s Claims Prior to May 31, 2017

Collins further seeks to dismiss J. Doe’s claims involving alleged
assaults which took place before May 31, 2017 as time-barred. (Doc. 31).
Opposing Collins’s motion to dismiss, J. Doe invokes the continuing
violations doctrine, arguing the doctrine tolled the two-year statute of

limitations with respect to her pre-May 31, 2017 claims. (Doc. 38).
The continuing violations doctrine provides “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; in
such an instance, the court will grant relief for the earlier related acts that
would otherwise be time-barred.” Cowell v. Palmer Twp., 263 F.3d 286, 292
(3d Cir. 2001) (quoting Brenner v. Local 514, United Bhd. of Carpenters &

Joiners of Am., 927 F.2d 1283, 1295 (3d Cir. 1991)). As a matter of policy,
“[t]he continuing violations doctrine recognizes that there may be situations
where the illegality of a defendant’s conduct becomes apparent only over a

period of time and, in such cases, an otherwise diligent plaintiff should not
be penalized for his or her delay in filing suit.” Turner v. Lopez, No. 3:15-
0542, 2015 WL 4066911, at *3 (M.D.Pa. July 2, 2015) (citing Foster v. Morris,
No. 05-4765, 2006 WL 3712949, at *177-78). The doctrine, which “is an

equitable exception to the timely filing requirement,” has an “understandably
narrow” reach. Tearpock-Martini v. Borough of Shickshinny, 756 F.3d 232,
236 (3d Cir. 2014) (quoting Cowell, 263 F.3d at 292). The continuing

violations doctrine usually applies to employment discrimination cases
“where only in retrospect will a plaintiff recognize . . . . a larger discriminatory
pattern.” Tearpock, 756 F.3d at 236 (citing Mandel v. M & Q Packaging
Corp., 706 F.3d 157, 165-67 (3d Cir. 2013)). However, the doctrine’s typically

narrow application does not preclude its application to other contexts.
Cowell, 263 F.3d at 292 (citing Brenner v. Local 514, United Bhd. of
Carpenters and Joiners of Am., 927 F.2d 1283, 1295 (3d Cir. 1991);

Centifanti v. Nix, 865 F.2d 1422, 1432-33 (3d Cir. 1989) (holding continuing
violations doctrine applied to a plaintiff’s §1983 claim)).
To benefit from the continuing violations doctrine, a plaintiff must
establish: (1) that “the last act evidencing the continuing practice falls within

the limitations period” and (2) that “the defendant’s conduct is more than the
occurrence of isolated or sporadic acts.” Cowell, 263 F.3d at 292. Here, “the
last act evidencing the continuing practice” falls within the limitations period

because J. Doe alleges Collins assaulted her on three occasions within the
statutory window: late 2017, November 2018, and February 2019. (Doc. 1).
Therefore, this Court should assess whether Collins’s conduct “is more than

the occurrence of isolated acts.” This inquiry requires consideration of three
factors: (1) subject matter—whether the violations constitute the same type
of discrimination, tending to connect them in a continuing violation; (2)

frequency—whether the acts are recurring or more in the nature of isolated
incidents; and (3) degree of permanence—whether the act had a degree of
permanence which should trigger the plaintiff’s awareness of and duty to
assert his/her rights and whether the consequences of the act would

continue even in the absence of a continuing intent to discriminate. Cowell,
263 F.3d at 292 (citing Berry v. Board of Supervisors of Louisiana State
Univ., 715 F.2d 971, 981 (5th Cir. 1983)). Of the three factors, “the

consideration of ‘degree of permanence’ is the most important” and “[t]he
focus of the continuing violations doctrine is on affirmative acts of the
defendants.” Cowell, 263 F.3d at 292.
However, “the continuing violations doctrine is not a substitute for a

plaintiff’s ‘awareness of and duty to assert his/her rights’ in a timely fashion.”
Bennett v. Susquehanna Cnty. Children and Youth Servs., 592 Fed. Appx.
81, 85 (3d Cir. 2014) (quotation omitted). A plaintiff’s awareness of injury

limits application of the continuing violations doctrine: where a defendant’s
conduct consists of an “actionable injury of which a reasonable plaintiff
should have been aware, the doctrine has no application.” Turner, 2015 WL

4066911, at *3 (citing Seawright v. Greenberg, 233 Fed. Appx. 145, 149 (3d
Cir. 2007); see also Morganroth & Morganroth v. Norris, McLaughlin &
Marcus, P.C., 331 F.3d 406, 417 n.6 (3d Cir. 2003) (continuing violations

doctrine does not apply to injuries that occurred before the filing period if the
plaintiff was aware of those injuries at the time they occurred). Stated
otherwise, the “continuing conduct of [a] defendant will not stop the ticking of
the limitations clock begun when plaintiff obtained requisite information.”

Kichline, 800 F.2d at 360. Moreover, “if prior events should have alerted a
reasonable person to act at that time the continuing violations theory will not
overcome the relevant statute of limitations.” Turner, 2015 WL 4066911, at

*3 (citing King v. Township of East Lampeter, 17 F. Supp. 2d 394, 416 (E.D.
Pa. 1998), aff’d, 182 F.3d 903 (3d Cir. 1999)).
In this case, J. Doe complains of inappropriate sexual solicitations by
Collins in 2012 and 2013—five and four years outside the statutory window,

respectively. (Doc. 1). J. Doe also alleges Collins first sexually assaulted her
in 2014 and that in 2015, she reported Collins’s assaults and solicitations to
two law enforcement agents. (Doc. 1). Here, the nature of J. Doe’s

allegations against Collins are clearly not the type of conduct—where injury
or the illegality of a defendant’s conduct only become apparent over an
extended period—contemplated by the continuing violations doctrine. See

Tearpock, 756 F.3d at 236; see also Turner, 2015 WL 4066911, at *3.
Instead, Collins’s alleged actions consisted of an “actionable injury of which
a reasonable plaintiff should have been aware,” rendering the continuing

violations doctrine inapplicable. See Seawright, 233 Fed. Appx. at 149; see
also Morganroth, 331 F.3d at 417 n.6; see also Turner, 2015 WL 4066911,
at *3. Because (1) the complaint alleges facts which should have triggered
J. Doe’s awareness of and duty to assert her rights, and (2) she was or

should have been aware of her injuries at the time they occurred, the
continuing violations doctrine does not apply. See Cowell, 263 F.3d at 292;
see also Morganroth, 331 F.3d at 417 n.6. Instead, the present facts warrant

a straightforward application of the two-year statute of limitations, and J.
Doe’s pre-May 31, 2017 claims should be dismissed with prejudice. See
Cowell, 263 F.3d at 292; see also Morganroth, 331 F.3d at 417 n.6.

B. J. Doe’s Fourth and Fourteenth Amendment Claims
Collins also argues in his motion to dismiss that Counts II through V of

the Complaint fail to state Fourth and Fourteenth Amendment claims upon
which relief can be granted. In considering this argument, this Court has
already determined that Counts IV and V brought by R.A. Doe are barred by
the applicable statute of limitations.

Collins argues that Count II brought by J. Doe should be dismissed
with prejudice because while Count II alleges “a violation of [J. Doe’s] right
to bodily integrity under the Fourth and Fourteenth Amendments,” violations

of bodily integrity pertain solely to the Fourteenth Amendment.
Collins further argues that Count III brought by J. Doe should be
dismissed with prejudice because while Count III cites J. Doe’s “right to be
free from unreasonable search and seizure under the Fourth and Fourteenth

Amendments,” Collins insists that pursuant to the more-specific provision
rule, those claims pertain solely to the Fourth Amendment. Collins therefore
moves to dismiss Count III entirely.

J. Doe references this Court’s March 30, 2021 Memorandum and
Order to support her request that this Court deny Defendant’s 12(b)(6)
motion insofar as the more-specific provision argument. (Doc. 35; Doc. 36;
Doc. 38). In the March 30, 2021 Memorandum and Order, this Court denied

a similar Rule 12(b)(6) motion to dismiss by Defendant City of Wilkes-Barre.
(Doc. 35; Doc. 36). This Court noted that at this stage of the proceedings, J.
Doe’s Fourth and Fourteenth Amendment claims would be permitted to
proceed, as J. Doe pled sufficient facts to plausibly give rise to entitlement
to relief. See Iqbal, 556 U.S. at 679; see also Doc. 35; Doc. 36.

In line with this Court’s March 30, 2021 Memorandum and Order, J.
Doe will be permitted to proceed, and defendant’s motion to dismiss J. Doe’s
Fourth and Fourteenth Amendment claims will be denied.

C. Anonymous Proceedings
Finally, Collins motions this Court to require J. Doe and R.A. Doe to

proceed as named plaintiffs. (Doc. 31). In support of his motion, Collins
argues that the public nature of our courts compels this Court to require
Plaintiffs to proceed as named litigants. (Doc. 31). Collins further argues that,

while allowing Plaintiffs to proceed anonymously falls within this Court’s
discretion, the facts in this case do not implicate exceptional circumstances
that warrant anonymity. (Doc. 31). In their brief in opposition, Plaintiffs allege
the high-profile nature of this case warrants anonymous proceedings but

concede that the issue is squarely within the discretion of this Court. (Doc.
38).

Indeed, “one of the essential qualities of a Court of Justice [is] that its
proceedings should be public.” Doe v. Megless, 654 F.3d 404, 408 (3d Cir.
2011) (quoting Daubney v. Cooper, 109 Eng. Rep. 438, 441 (K.B. 1829));
Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 598-99 (1978). The Federal
Rules of Civil Procedure reflect this essential quality of our courts, requiring

that every pleading have a title which “must name all the parties.”
Fed.R.Civ.P. 10(a). Further, Rule 17(a)(1) requires “[a]n action must be
prosecuted in the name of the real party in interest.” While not enumerated

in the Federal Rules of Civil Procedure, courts permit parties to proceed
anonymously under exceptional circumstances. Megless, 654 F.3d at 408
(“Examples of areas where courts have allowed pseudonyms include cases
involving ‘abortion, birth control, transsexuality, mental illness, welfare rights

of illegitimate children, AIDS, and homosexuality.’” (citing Doe v. Borough of
Morrisville, 130 F.R.D. 612, 614 (E.D.Pa. 1990))).

A party wishing to proceed anonymously must show both: (1) a fear of
severe harm and (2) that their fear of severe harm is reasonable. Megless,
654 F.3d at 408 (citing Doe v. Kamehameha Sch./Bernice Pauahi Bishop
Estate, 596 F.3d 1036, 1043 (9th Cir. 2010)). Showing potential

embarrassment or economic harm is insufficient. Megless, 654 F.3d at 408
(citing Doe v. C.A.R.S. Protection Plus, Inc., 527 F.3d 358, 371 n.2 (3d Cir.
2008)). Once a litigant shows their reasonable fear of severe harm, “courts

of appeal are in agreement that district courts should balance a plaintiff’s
interest and fear against the public’s strong interest in an open litigation
process.” Megless, 654 F.3d at 408 (citing Sealed Plaintiff v. Sealed
Defendant, 537 F.3d 185, 189-90; Doe v. Porter, 370 F.3d 558, 560 (6th Cir.

2004); Does I Thru XXIII v. Advanced Textile Corp., 214 F.3d 1058, 1068
(9th Cir. 2000); M.M. v. Zavaras, 139 F.3d 798, 803 (10th Cir. 1998); James
v. Jacobson, 6 F.3d 233, 242 (4th Cir. 1993); Doe v. Frank, 951 F.2d 320,

323 (11th Cir. 1992); Doe v. Stegall, 653 F.2d 180, 186 (5th Cir. 1981)). The
following factors favor anonymity:
“(1) the extent to which the identity of the litigant has been kept
confidential; (2) the bases upon which disclosure is feared or sought to
be avoided, and the substantiality of these bases; (3) the magnitude of
the public interest in maintaining the confidentiality of the litigant's
identity; (4) whether, because of the purely legal nature of the issues
presented or otherwise, there is an atypically weak public interest in
knowing the litigant's identities; (5) the undesirability of an outcome
adverse to the pseudonymous party and attributable to his refusal to
pursue the case at the price of being publicly identified; and (6) whether
the party seeking to sue pseudonymously has illegitimate ulterior
motives.”

Megless, 654 F.3d at 409 (citing Doe v. Provident Life and Acc. Ins. Co., 176
F.R.D. 464, 467 (E.D.Pa. 1997)). The following factors disfavor anonymity:
“(1) the universal level of public interest in access to the identities of
litigants; (2) whether, because of the subject matter of this litigation,
the status of the litigant as a public figure, or otherwise, there is a
particularly strong interest in knowing the litigant's identities, beyond
the public's interest which is normally obtained; and (3) whether the
opposition to pseudonym by counsel, the public, or the press is
illegitimately motivated.”

Megless, 654 F.3d at 409 (citing Provident Life, 176 F.R.D. at 467).
Here, while Plaintiffs point to the high-profile nature of the case as
favoring proceeding anonymously, such a showing is insufficient to show the

requisite “fear of severe harm.” Megless, 654 F.3d at 408. Without such a
showing, this Court cannot find Plaintiffs’ interest in proceeding anonymously
outweighs the need for courts to be publicly accessible. See Megless, 654

F.3d at 408-09. Accordingly, Collins’s motion for Plaintiffs to proceed as
named litigants will be granted.
In light of the foregoing, Collins’s motion to dismiss will be granted in
part and denied in part. An appropriate order shall issue.

s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge

DATE: August 19, 2021
19-938-02

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10410593. Public record. Not legal advice.