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October 20, 1986

JOHN PLAIN, Plaintiff,

The opinion of the court was delivered by: DEBEVOISE

 Plaintiff John Plain moves to amend his complaint against defendant David Flicker and to add defendant Dr. Richard Chopin to his cause of action.


 On February 10, 1986, I held a hearing on whether to adopt the Magistrate's recommendation to dismiss plaintiff's complaint for lack of subject matter jurisdiction. At that hearing, I granted plaintiff permission to file a motion seeking leave to amend his complaint for the purpose of asserting a federal cause of action. Plaintiff was stimulated to bring his motion by his adversary's motion to dismiss the action for failure to file a detailed amended complaint. Defendant now opposes plaintiff's motion seeking leave to amend his complaint.


 Plaintiff appears pro se. Some of the facts he alleges appear in his brief but not in his complaint. In light of the Supreme Court's admonition that a pro se document is to be "liberally construed," Estelle v. Gamble, 429 U.S. 97, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976), I will consider all of the facts plaintiff sets forth in both his brief and amended complaint. Defendant has been instructed to respond to all of the facts alleged by plaintiff.

 The events giving rise to plaintiff's complaint occurred in November of 1968. Plaintiff was a guest in the home of Mr. and Mrs. Ward in Short Hills, New Jersey. He alleges that a physician he believed to be Dr. Flicker appeared at the Ward residence and told him he was having him committed to a mental institution. Shortly thereafter an ambulance and a police car arrived at the Ward's residence to transfer plaintiff to the Carrier Clinic, a private psychiatric clinic in Bell Meade, New Jersey. Plaintiff states that he was able to convince the physician to transport him in the physician's private car.

 In 1984 plaintiff filed an ethics complaint against psychiatrist David Flicker with the Ethics Committee of the Essex County Medical Society alleging that Dr. Flicker had breached physician-patient confidentiality by informing another physician that Plain was "crazy." As the result of this complaint Jean Murphy, on behalf of the Ethics Committee, investigated plaintiff's complaint including his commitment to the Carrier Clinic. She informed plaintiff that Dr. Chopin had driven plaintiff to the clinic. Furthermore, she told plaintiff that the two physicians who had signed plaintiff's commitment papers were Drs. Flicker and Chopin. Plaintiff alleges that Dr. Flicker never examined him and hence the commitment order was executed in violation of New Jersey law which requires the signatures of two examining physicians.

 Plaintiff asserts in Count I of his complaint that the commitment proceedings, beginning with the signing of a commitment certificate by Drs. Flicker and Chopin, continuing with the appearance by local police at the residence where he was staying, and culminating in his unwilling confinement in a mental institution, violated his civil rights as protected by 42 U.S.C. §§ 1983 and 1985. Plaintiff alleges that there was a conspiracy to involuntarily commit him to a mental institution in violation of New Jersey law. He further alleges that the presence of the police implicates the state in the commitment process, giving rise to the requisite state action necessary to maintain his claim under 42 U.S.C. § 1983. Plaintiff asserts in Count II that Drs. Flicker and Chopin committed medical malpractice during their interaction with him. Plaintiff has two difficult hurdles to surmount before he can amend his complaint. Sufficient state action must be pled to bring the allegations within the boundaries of the civil rights laws. Furthermore, plaintiff must overcome the argument that his action is barred by the appropriate statute of limitation.

 A complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1956). Notice pleading, which gives the defendant "fair notice of what the plaintiff's claim is and the grounds upon which it rests," is all that is required. All facts pled by the plaintiff must be taken as true and all reasonable inferences must be drawn in favor of the plaintiff. Altemose Construction Co. v. Atlantic, 493 F. Supp. 1181, 1183 (D.N.J. 1980), citing McKnight v. Southeastern Pennsylvania Transportation Authority, 583 F.2d 1229, 1235-36 (3d Cir. 1978). To withstand a Fed.R.Civ.P. 12(b)(6) motion to dismiss, "it is not necessary to plead evidence, nor is it necessary to plead facts upon which the claim is based." Bogosian v. Gulf Oil Co., 561 F.2d 434, 446 (3d Cir. 1977). Greater latitude than usual be given to plaintiff's complaint:

[A] pro se complaint "however inartfully pleaded," must be held to less stringent standards than formal pleadings drafted by lawyers.

 Estelle v. Gamble, 429 U.S. 97, 106, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976), quoting Haines v. Kerner, 404 U.S. 519, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972).

 A. Statute of Limitations

 Plaintiff contends that his rights under 42 U.S.C. §§ 1983 and 1985 have been violated. Defendant argues that plaintiff's complaint is time barred. There is no federal limitations period governing these two sections of the civil rights laws. Instead the courts "borrow" the state law of limitations governing an analogous cause of action. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462, 44 L. Ed. 2d 295, 95 S. Ct. 1716 (1975). In Garcia v. Wilson, 471 U.S. 261, 85 L. Ed. 2d 254, 105 S. Ct. 1938 (1985) the Supreme Court held that claims under 42 U.S.C. § 1983 are best characterized as personal injuries and so should be governed by the appropriate state statute of limitations. In New Jersey the statute of limitations in personal injury actions is two years, N.J.S.A. 2A:14-2.

 Since plaintiff's injury occurred in 1968 his cause of action would be barred unless he can allege that the statute was tolled or that his cause of action did not accrue until within two years of filing this action. State law governs the tolling of the statute, unless state law is inconsistent with the purposes behind the civil rights acts. Board of Regents v. Tomanio, 446 U.S. 478, 484-86, 64 L. Ed. 2d 440, 100 S. Ct. 1790 (1980), Aitchison v. Raffiani, 708 F.2d 96, 101 (3rd Cir. 1983). However, the accrual of a civil rights action is a question of federal law. Sandutch v. Muroski, 684 F.2d 252, 254 (3rd Cir. 1982) (per curiam). The Third Circuit has held that a civil rights cause of action accrues when a plaintiff knows or has reason to know of the injury that is the basis of his action. Id. A discovery rule is applied by the Supreme Court, requiring that plaintiff must be aware of both the fact of injury and its causal connection to defendant but need not know that defendants conduct is tortious or unlawful. United States v. Kubrick, 444 U.S. 111, 62 L. Ed. 2d 259, 100 S. Ct. 352 (1979) (discovery rule under Federal Torts Claims Act). See Hauptmann v. Wilentz, 570 F. Supp. 351 (1983), aff'd, 770 F.2d 1070 (3rd Cir. 1985) (applying Kubrick rule to § 1983 claim). In Kubrick the Court overturned the Third Circuit's reasoning that a claim should not accrue until plaintiff knew or should have suspected that the doctor who caused his injury was legally blameworthy. The Court wrote:

We are unconvinced that for statute of limitations purposes a plaintiff's ignorance of his legal rights and his ignorance of the fact of his injury or its cause should receive identical treatment. That he has been injured in fact may be unknown or unknowable until the injury manifests itself; and the facts about causation may be in the control of the putative defendant, unavailable to defendant or at least very difficult to obtain. The prospect is not so bleak for a plaintiff in possession of the critical facts that he has been hurt and who has inflicted the injury. He is no longer at the mercy of the latter. There are others who can tell him if he has been wronged, and he need only ask.

 Kubrick, supra, 444 U.S. at 122.

 In the instant action plaintiff alleges that he was unaware of his injury at the hands of Drs. Flicker and Chopin because, since he was only seen by one doctor prior to the commitment, he had no way of knowing that another doctor had signed his commitment papers without examining him until the state brought this to his attention. But ignorance that the law required two signatures does not toll the statute. If plaintiff felt he had been wrongfully committed, he could have investigated the circumstances of his commitment, including its legality within two years of the commitment.

 Plaintiff argues that the statute should be tolled, directing the court to a recent opinion issued by the District of Columbia Court of Appeals. Hohri v. United States, 251 U.S. App. D.C. 145, 782 F.2d 227 (D.C. Cir. 1986). In Hohri the court permitted plaintiffs to pursue Takings Clause claims based on injuries more than four decades old. Plaintiffs were imprisoned along with 120,000 other Japanese-American citizens in internment camps in the wake of Pearl Harbor during World War II. Their internment was ostensibly ordered to protect security along the West Coast. The court found that the statute of limitations governing the claims had been tolled due to the fraudulent concealment of information that prevented plaintiff from alleging a crucial element of his claim. In Hohri, plaintiffs demonstrated that the United States covered up critical evidence showing the lack of military justification for the internment. This concealment may have misled the Supreme Court causing it to deny the wartime legal challenges to the internment program. Id. at 252. In Hohri the court held that the statute of limitations was tolled by the doctrine of fraudulent concealment. Fraudulent concealment tolls the running of the ...

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