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Polite v. Diehl

decided: December 31, 1974.

HAROLD POLITE, APPELLANT
v.
DONALD DIEHL AND WALTER LOFSTROM, AS INDIVIDUALS AND AS OFFICERS OF THE MCKEESPORT POLICE DEPARTMENT HAROLD POLITE, APPELLANT V. WILLIAM RENDULIC, FRANK CHANCIO, THOMAS HANNA, RONALD DONET, ROBERT SOKOL AND WALTER LOFSTROM, AS INDIVIDUALS AND AS OFFICERS OF THE MCKEESPORT POLICE DEPARTMENT



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA.

Kalodner, Aldisert and Adams, Circuit Judges. Seitz, Chief Judge, Kalodner, Van Dusen, Aldisert, Adams, Gibbons, Rosenn, Hunter, and Garth, Circuit Judges. Kalodner, Circuit Judge, concurring in part and dissenting in part.

Author: Adams

Opinion OF THE COURT

ADAMS, Circuit Judge

The primary issue on appeal in this civil rights action is whether the district court, in granting the defendants' motion for summary judgment, applied the correct statute of limitations.

I.

On the evening of August 17, 1969, an automobile operated by Polite, the plaintiff, struck the rear of a vehicle that had stopped at a "Stop" sign. The defendant Diehl, a McKeesport, Pennsylvania, policeman, arrived two or three minutes after the accident occurred. He transported Polite, his two children, and a girl who had been riding in the other car, to McKeesport Hospital. On Diehl's instructions, Polite's car was towed away by a private towing service.

Polite was placed under arrest at the hospital on charges of driving under the influence of liquor and disorderly conduct. Polite alleges that while he was held in custody at the police station the defendant policemen maliciously beat him and sprayed chemical mace in his eyes. Then, Polite claims, he was taken before a magistrate and forced to plead guilty to charges of disorderly conduct, resisting arrest, and failure to have a driver's license and ownership card as required by Pennsylvania law. The following morning, after a hearing, Polite was bound over on the drunken driving charge.

Approximately 23 months after Polite's arrest he filed a civil rights action against Diehl and Lofstrom. A little less than 24 months after the arrest*fn1 he filed another suit against Rendulic, Chancio, Hanna, Donet, Sokol and Lofstrom, alleging the same violations of his civil rights raised in the first suit. All the defendants were McKeesport policemen. The two actions were consolidated in the district court.

The complaints both alleged that the defendant policemen, "acting in concert and under color of state law," violated the Civil Rights Acts*fn2 in depriving Polite of due process of law and equal protection of the laws in that (1) "Plaintiff was detained and incarcerated without a warrant, probable cause, explanation of the charges, explanation of his rights or the opportunity to consult with counsel;" (2) "Plaintiff was subjected to verbal abuse and taunting [and] . . . physical abuse by the defendants in that he was repeatedly beaten, kicked, punched and while imprisoned in a cell was subjected to the application of liquid chemical mace to the eyes, all of which caused serious and severe injuries to the plaintiff," and "denied medical attention for the injuries received in the beatings administered by the defendants;" (3) "By the use of threats, intimidation and interrogation was forced by the defendants to plead guilty to the charges alleged;" and (4) "At the time of the collision the defendants, without explanation, unlawfully seized the plaintiff's vehicle."

The defendants denied the allegations in Polite's complaints, and then filed a motion for summary judgment*fn3 on the ground that Pennsylvania's one-year statute of limitations for actions based on false arrest*fn4 barred plaintiff's suits. Polite, in reply, contended that the appropriate statute of limitations was Pennsylvania's two-year statute pertaining to suits for personal injury.*fn5

Following a hearing on defendants' motion for summary judgment, the district court granted judgment in favor of the defendants in both actions. The district court construed Gagliardi v. Lynn,*fn6 the leading case on the scope of Pennsylvania's statute of limitations for false arrest actions, as holding that that statute "applies to the entire course of conduct in cases involving incarceration preceded by arrest, including any incidental assault and battery."*fn7 Applying the one-year false arrest statute of limitations to the entirety of Polite's complaints, the district court granted defendants' motions since more than a year had elapsed between the alleged violations of Polite's rights and the filing of the actions. These appeals followed.

II.

Polite contends that the district court should have applied Pennsylvania's two-year statute of limitations pertaining to personal injury actions instead of the one-year statute of limitations relating to actions for false arrest. Although Polite has not challenged the district court's application of a single statute of limitations to the numerous claims raised in his complaints, we must determine whether the district court should have applied a separate statute to each cause of action.

The district court correctly applied the one-year statute of limitations to Polite's allegations of an unlawful arrest, but it erred in holding that the one-year statute extended to the assault and battery, conversion and guilty plea aspects of his actions.

Since the Civil Rights Acts contain no statute of limitations, the limitation to be applied is that which would be applicable in the courts of the state in which the federal court is sitting had an action seeking similar relief been brought under state law. Henig v. Odorioso, 385 F.2d 491 (3d Cir. 1967), cert. denied 390 U.S. 1016, 20 L. Ed. 2d 166, 88 S. Ct. 1269 (1968). Consequently, this Court has held that Pennsylvania's one-year statute of limitations pertaining to suits for false arrest is applicable to federal civil rights actions for a false arrest allegedly committed in Pennsylvania. Hileman v. Knable, 391 F.2d 596 (3d Cir. 1968); Henig v. Odorioso, supra. Accordingly, the district court did not err in applying the bar of Pennsylvania's one-year statute of limitations to the unlawful arrest aspect of Polite's actions.

Gagliardi, supra, however, affords no support for the view, adopted by the district court, that the limitations statute applicable to actions for false arrest "applies to the entire course of conduct in cases involving incarceration preceded by arrest, including any incidental assault and battery."*fn8 (emphasis added) In Gagliardi, the only issue was whether the trial court erred in holding that the one-year false arrest statute barred an action for false imprisonment. The Pennsylvania Supreme Court, in affirming, stated that "confinement is inextricably intertwined with an unlawful arrest," and "By the same token, if the false arrest involved only a touching and no confinement, and we were forced to choose between limitation statutes relating to false arrest and battery, we would opt for the former." 446 Pa. at 150. (emphasis supplied)

Putting aside the fact that the latter statement was dictum, the language quoted refers only to a "touching" or battery committed in accomplishing an arrest. The assault alleged here occurred not when the plaintiff was arrested at the hospital, but considerably later while he was being held in the police station. Therefore, since the alleged assault and battery was not "inextricably intertwined" with the alleged false arrest, plaintiff's cause of action for assault and battery would not, under Pennsylvania law, be subsumed under the one-year statute applicable to suits for false arrest. Rather, if plaintiff had brought an analogous action in state court, that court would have applied Pennsylvania's two-year personal injury statute to the assault and battery. The district court here, therefore, must do the same. Thomas v. Howard, 455 F.2d 228 (3d Cir. 1972).

III.

The district court dismissed plaintiff's allegations of a coerced guilty plea and the illegal seizure of plaintiff's automobile on the basis of the one-year false arrest statute of limitations. What has been said with regard to the assault and battery allegations demonstrates that the district court erred in doing so, since that alleged conduct was separable from the false arrest. The Pennsylvania statute of limitations applicable to state suits analogous to the allegation of the unlawful seizure of plaintiff's automobile is the six-year statute for actions for the recovery of goods. The state cause of action most similar to plaintiff's allegation of a guilty plea coerced by physical abuse is one for wrongful personal injury not resulting in death, to which a two-year statute is applicable.*fn9 The trial court therefore erred in summarily disposing of these two causes of action on the basis of the one-year false arrest statute.

Both parties to this appeal contend that plaintiff's entire complaint should be governed by a single limitations statute. Such a ruling, however, would be contrary to the holdings in Henig, supra, and Thomas, supra, that the district court must apply the same statute of limitations that a state court would apply in a state action seeking similar relief. Moreover, applying a single statute would have an anomalous result, since joining a claim for unlawful arrest with one for "police brutality" would either extend the statute which would be applicable to the unlawful arrest or contract the statute that would be applicable to the brutality claim if plaintiff had raised only one of the claims or had raised them in separate actions.*fn10

IV.

We note that the defendants filed a supplemental motion for summary judgment on the basis that the record contained no evidence to sustain plaintiff's allegations of a coerced guilty plea or of an unlawful seizure of his automobile. Although the record in its present state may not contain sufficient averments to withstand such a motion, since there is no indication in the record that this motion was considered by or pressed in the district court and since the parties may wish to present additional facts when the question is squarely addressed, we leave that issue to be resolved upon remand.

Defendants' motions for summary judgment did not specifically raise the question whether the alleged assault, as described in the depositions, constituted grounds for relief under section 1983, nor did the briefs on this appeal deal with the issue, except in a fleeting reference.*fn11 Consequently, it would appear premature to address it at this time.*fn12

Accordingly, the judgment of the district court granting summary judgment for the defendants on the causes of action alleging false arrest will be affirmed, but the judgment on the causes of action alleging assault and battery, a coerced guilty plea and unlawful seizure of the automobile will be reversed, and the case will be remanded to the district court for further proceedings consistent with this opinion.

KALODNER, Circuit Judge, concurring in part and dissenting in part.

I agree with the majority's holding that the district court correctly applied Pennsylvania's one-year statute of limitations to Polite's false arrest claims but erred in applying that statute to the assault and battery, conversion and guilty plea aspects of Polite's actions.

I further agree with the majority's affirmance of the Order of the district court insofar as it granted summary judgment for the defendants with respect to Polite's false arrest claims.

I dissent, however, from the reversal of the Order insofar as it granted summary judgment for the defendants as to Polite's assault and battery, coerced guilty plea, and automobile conversion claims.

The majority has taken a short cut to error in its stated reversal.

The critical threshold question by these appeals may be epitomized as follows:

Are Fourteenth Amendment rights violated when a policeman's fists give a "black eye"*fn* to one under arrest; otherwise stated, is infliction of a "black eye" a "federal case"?

The question was raised in the district court by the defendants' "Supplemental Motion for Summary Judgment" following filing of record of Polite's Deposition and his "Pre-Trial Narrative Statement," and its annexed "Medical Report," which disclosed nothing more than alleged infliction of a "black eye" of five days' duration by the bare fists of one of the defendant-policemen.

The majority has decided to eschew deciding upon the threshold question and to "leave that issue to be resolved upon remand" on its reasoning that "it would appear premature to address it at this time," because, in its view, "there is no indication in the record that this motion was considered by or pressed in the district court"; and "defendants' motions for summary judgment did not specifically raise the question whether the alleged assault, as described in the depositions, constituted grounds for relief under section 1983, nor did the briefs on this appeal deal with the issue, except in a fleeting reference."

I disagree with the majority's stated views in every respect. Polite's Complaints alleged violation of his Fourteenth Amendment rights and sequential applicability of § 1983, and the defendants' Answers denied violation of "any" constitutional rights. The applicability of § 1983 was squarely presented here by the briefs of Polite and the defendants. The defendants' brief specifically urged that "the plaintiff has failed to state a cause of action under the Civil Rights Act."

The majority has not served the judicial economy in limiting its disposition to the statutory limitations issue presented by the defendants' Motion for Summary Judgment and eschewing the substantive issue as to applicability of § 1983 raised by the defendants' Supplemental Motion for Summary Judgment.

The circumstance that the district court did not decide the threshold question presented by the Supplemental Motion for Summary Judgment is of no consequence. Nor is it of critical significance that the district court erred in premising its grant of summary judgment in favor of the defendants with respect to Polite's assault and battery and conversion allegations on Pennsylvania's one-year false arrest statute of limitations. It is settled that an appeal brings up the ultimate question whether a judgment below is right or wrong, and an appellate court may affirm the judgment if found to be correct, although based on incorrect reasoning. United States v. Rose, 346 F.2d 985, 989 (3d Cir. 1965), cert. denied, 382 U.S. 979, 86 S. Ct. 551, 15 L. Ed. 2d 469 (1966).

The facts giving rise to plaintiff's actions may be highlighted as follows:

On the evening of August 17, 1969, at about 6:30 p.m., an automobile operated by Polite, in which his two young children were passengers, ploughed into the rear of an automobile which had stopped at an intersection in compliance with a "Stop" warning sign.

The defendant Diehl, a McKeesport, Pennsylvania policeman, arrived at the scene of the accident two or three minutes after it occurred. He transported Polite, his two children, and a girl who had been riding in the struck car, to McKeesport Hospital. One of Polite's children was then suffering from a bleeding nose occasioned by the collision. Polite's car, which had sustained a smashed radiator, was towed away by a private towing service on Diehl's instructions.

Polite was placed under arrest at the hospital for alleged driving under the influence of liquor and disorderly conduct. He was taken to the police station about 7 p.m. He was given a hearing before a magistrate several hours later on charges of disorderly conduct, resisting arrest, and failure to have a driver's license and ownership card as required by Pennsylvania law. The magistrate fined Polite $205.00 and imposed costs of $15.00. Polite paid the fines and costs.

Polite was given a hearing on the drunken driving charge the next morning before the same magistrate. He was bound over under bond of $1,000.00 for action by the grand jury and released from custody. The grand jury later failed to indict Polite.

On July 8, 1971, Polite filed a civil rights action against the defendants at Appeal No. 72-1770. He filed his action on August 11, 1971 against the defendant policemen at Appeal No. 72-2013. The first action came almost 23 months after Polite's arrest on August 17, 1969; the second action almost two years later. The actions were consolidated below.

The complaints alleged in relevant part that the defendant policemen, "acting in concert and under color of state law," violated the Civil Rights Acts in depriving Polite of the due process of law and equal protection of the laws guarantees of the Fourteenth Amendment in that (1) "Plaintiff was detained and incarcerated without a warrant, probable cause, explanation of the charges, explanation of his rights or the opportunity to consult with counsel," and "By use of threats, intimidation and interrogation was forced by the defendants to plead guilty to the charges alleged"; (2) "Plaintiff was subjected to verbal abuse and taunting [and] . . physical abuse by the defendants in that he was repeatedly beaten, kicked, punched and while imprisoned in a cell was subjected to the application of liquid chemical mace to the eyes, all of which caused serious and severe injuries to the plaintiff," and "denied medical attention for the injuries received in the beatings administered by the defendants"; and (3) "At the time of the collision the defendants without explanation unlawfully seized the plaintiff's vehicle."

The defendants filed timely Answers in which they denied the allegations in Polite's complaints.

Polite took depositions in August 1971 of Diehl; Kenneth Carroll, Records Custodian of the McKeesport Police Department; and Esther and Rosemary Oros, driver and passenger, respectively, of the struck car.

Polite's deposition was taken by the defendants in August 1971.

All of the depositions taken were filed on September 29, 1971.

Polite's "Pre-Trial Narrative Statement" was filed on January 6, 1972. The "Medical Report" of Dr. Philip C. Grana, an opthalmologist, was attached to, and made part of it. The defendants' "Pre-Trial Narrative Statement" was filed on March 15, 1972. A pre-trial conference was had on March 24, 1972.

On April 5, 1972, defendants filed a Motion for Summary Judgment, under Rule 56, Fed. R. Civ. P., on the ground that Pennsylvania's false arrest one-year statute of limitations barred plaintiff's actions. Polite, in reply, contended that the appropriate statute of limitations was Pennsylvania's two-year statute of limitations pertaining to suits for personal injury.

On May 1, 1972 the defendants filed a "Supplemental Motion for Summary Judgment" on the prevailing record.

The district court entered judgments in favor of the defendants in both actions in a "Memorandum and Order" filed July 7, 1972, following a hearing that day on their "Motion for Summary Judgment."

In doing so it held that the Pennsylvania one-year statute of limitations extended to all aspects of Polite's actions.

The instant appeals followed.

What has been said brings me to the threshold question:

Are Fourteenth Amendment rights violated when a policeman's fists give a "black eye" to one under arrest; otherwise stated, is infliction of a "black eye" a federal case?

That Polite suffered no more than a commonplace black eye, which "healed," with "no complications," in some five days, after treatments consisting of application of "eye drops," is established by the "Medical Report"*fn1 of his attending physician, Dr. Philip C. Grana, an opthalmologist.

The "Medical Report" discloses:

Polite visited Dr. Grana on August 19, 1969. He told Dr. Grana that "he was struck in left eye (Sunday evening 8-17-69 by a policeman)." Polite's left eye was "swollen shut." Dr. Grana's diagnosis was " Edema*fn2 left upper eye lid and left lower eye lid (Moderate)." X-rays taken at Braddock General Hospital on August 19, 1969 were " negative for fracture." "Ocular examination to determine extent of injury" resulted in "Findings normal." "Eye drops" were prescribed. Polite was "discharged" August 23, 1969, with notation -- " Eye healed -- no complications." (emphasis supplied).

The "Medical Report" concluded with these statements: "Cost of medical treatment to date $27.00. Estimated cost of future medical treatment None." (emphasis supplied).

It may be noted parenthetically that Polite stated in his filed deposition that he had not seen any physician following his discharge by Dr. Grana, and that "Plaintiff's Pre-Trial Narrative Statement" lists as sole medical expenses Dr. Grana's fee of $27.00 and $15.00 paid to Braddock General Hospital for X-rays.

Polite's deposition, insofar as it related to his allegations that he "was subjected to physical abuse by the defendants . . . and to the application of liquid chemical mace to the eyes,"*fn3 may be summarized as follows:

He was struck and knocked down by officer Rendulic while he was in the police station; Rendulic and other unidentified policemen dragged him to a cell where Rendulic "sprayed mace in my eyes" and "hit me in my eyes"; Polite's face was not bruised, there was "just swelling"; Rendulic only used "his fists"; "he didn't hit me with any club or blackjack . . . or gun or anything"; Rendulic did not "kick" him; officer Diehl "didn't" hit Polite, nor use mace on him, nor hold him while he was being hit by Rendulic; Polite didn't identify the officers who allegedly held him while he was being attacked by Rendulic, nor did he say that any other policeman had struck him.

The distilled essence of Polite's deposition testimony is that Rendulic, using only his fists, "hit me in my eyes," and "sprayed mace in my eyes." The distilled essence of Dr. Grana's Medical Report is that Polite suffered a commonplace black eye which completely healed in five days after application of eye drops. Taken together they make out a case of "simple battery" which is defined as "Any unlawful beating, or other wrongful physical violence or constraint, inflicted on a human being without his consent . . . not accompanied by circumstances of aggravation, or not resulting in grievous bodily injury." (emphasis supplied).*fn4

I am of the opinion that standing alone, an ordinary assault and battery committed by a policeman upon one under arrest does not violate Fourteenth Amendment guarantees,*fn5 and thus does not bring into play the Civil Rights Act, 42 U.S.C.A. § 1983, which affords the remedy of an action at law, or suit in equity, for "deprivation of any rights, privileges, or immunities secured by the Constitution and [the] laws,"*fn6 or 28 U.S.C.A. § 1343(3) which creates federal jurisdiction as to civil actions "To redress the deprivation, under color of any State law, . . . of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons . . .."*fn7

Here Polite's complaints alleged only that "he was subjected to verbal abuse and taunting . . . [and] physical abuse by the defendants . . . which caused serious and severe injuries to the plaintiff." The complaints did not allege that the "physical abuse" was administered by the defendants (1) in the course of performance of their official duties; or (2) as summary punishment in lieu of regular procedures of trial and sentence; or (3) that the alleged physical abuse amounted to "cruel and unusual punishments" proscribed by the Eighth Amendment; or (4) that it was "discriminatory." The complaints state only conclusionary allegations of constitutional violations under color of state law, viz., deprivation of "the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution."

Polite's theory of his case is epitomized in "Plaintiff's Pre-Trial Narrative Statement" as follows:

"During the course of his detention, the plaintiff was subjected to verbal abuse and taunting by the individual defendants. He was also subjected to physical abuse by the defendants in that he was beaten, kicked and punched by some or all of them. While imprisoned in a cell, the plaintiff was subjected to the application of liquid chemical mace to his eyes, all of which caused him serious and severe injuries. All of the aforesaid was committed without provocation or reasonable cause."

The sum of that theory is that any assault by a policeman on one under arrest -- irrespective of attending circumstances, the nature and degree of the assault, and its consequences -- constitutes a violation of the guarantees of the Fourteenth Amendment.

The circumstances attending the assault and its nature, degree and consequences, are respectively spelled out in ...


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