Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-27-2006

Huertas v. Philadelphia
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3807




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Recommended Citation
"Huertas v. Philadelphia" (2006). 2006 Decisions. Paper 685.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/685


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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                    No. 05-3807
                                    ___________

                                 Hector L. Huertas,
                                        Appellant

                                         v.

              CITY OF PHILADELPHIA; MAYOR JOHN STREET;
               CITY OF PHILADELPHIA POLICE DEPARTMENT;
             JOHN TIMONEY, FORMER POLICE COMMISSIONER;
              SYLVESTER JOHNSON, POLICE COMMISSIONER;
             CHARLES MYERS, PHILADELPHIA POLICE OFFICER;
               IRVIN RILEY, PHILADELPHIA POLICE OFFICER;
              JAMES QUICK, PHILADELPHIA POLICE OFFICER;
                KENNETH VASSALLO, PHILADELPHIA POLICE
            OFFICER; ANDREW J. ADAMS, DETECTIVE; RICHARD
             ROSS, CAPTAIN; JOHN DOE 1-3; SUN BANCORP INC;
            SUSAN DUGAN, SUN NATIONAL BRANCH EMPLOYEE;
            JOHN TORDINI, SUN NATIONAL BRANCH EMPLOYEE
                          ______________________

                   On Appeal From the United States District Court
                            For the District of New Jersey
                            (D.C. Civil No. 05-cv-02322)
                    District Judge: Honorable Freda L. Wolfson
                            ________________________

                     Submitted Under Third Circuit LAR 34.1(a)
                                  May 12, 2006

              Before: RENDELL, AMBRO and ROTH*, Circuit Judges.



* Judge Roth assumed senior status on May 31, 2006.
                                   (Filed: July 27, 2006)
                                      _____________

                                 OPINION OF THE COURT
                                     _____________

PER CURIAM

       In 2005 Hector L. Huertas filed a pro se civil rights action against the City of

Philadelphia, Sun Bancorp, Inc., and various of their employees. He alleges that they

conspired to deprive him of his civil rights in connection with his wrongful arrest for

bank robbery on October 26, 2000. After the court sua sponte dismissed his complaint,

Huertas filed a Rule 60(b) motion, which was denied; this appeal followed. For the

reasons below we will affirm.1

                                              I

       The District Court dismissed the complaint on two grounds. First, the Court found

that it was virtually identical to a previous complaint Huertas had filed against the same

defendants.2 However, in the first complaint the named defendants were the City of

Philadelphia and Sun Bancorp, Inc. In the instant complaint Huertas retained those

defendants but also added several of their officers and other employees. As we have

explained, “res judicata may be invoked against a plaintiff who has previously asserted


  1
    We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of an order dismissing
a complaint under 28 U.S.C. § 1915 is plenary. Tourscher v. McCullough,

(3d Cir. 1999).
  2
    Earlier this year we affirmed the dismissal, with prejudice, of that complaint for
discovery abuse. See Huertas v. City of Philadelphia, 139 Fed. Appx. 444 (3rd Cir. 2005).

                                              2
essentially the same claim against different defendants where there is a close or

significant relationship between successive defendants.” Lubrizol Corp. v. Exxon Corp.,

, 966 (3d Cir. 1991). The District Court did not address whether such a

relationship is present here, perhaps because it does not appear to have noticed that

Huertas added defendants in his second action. Moreover, we have not had occasion to

apply the general principle stated in Lubrizol to a case such as Huertas’ where the

defendants in the initial action included a municipality and the second added certain of its

officers and other employees. Other courts have declined to assume that privity exists

between a municipality and its officers or other employees, Headley v. Bacon, 

, 1276-1280 (8th Cir. 1987), especially where, as here, the added defendants are sued

in both their personal and official capacities. See Conner v. Reinhard, 

(7th

Cir. 1988).

                                             II

       We need not resolve that question here, however, because we agree with the

District Court that Huertas’ complaint is barred as untimely.3

       The statute of limitations for Huertas’ action is governed by the personal injury


  3
    The statute of limitations is an affirmative defense and as such is not grounds for sua
sponte dismissal under § 1915 unless the defense is obvious from the face of the
complaint and no development of the factual record is required to determine whether
dismissal is appropriate. Fogle v. Pierson, 

, 1258 (10th Cir. 2006); Pino v.
Ryan, 

(2d Cir. 1995) (collecting cases). Those conditions are met here. Not
only is the defense obvious from the allegations in the complaint, but Huertas himself
expressly raised the issue, offering reasons in his complaint why the statute should be
tolled.

                                             3
statute of limitations of Pennsylvania, the state in which the cause of action accrued.

O’Connor v. City of Newark, 

, 126 (3d Cir. 2006). That period is two years,

subject to any state law tolling provisions which are not inconsistent with federal law.

Lake v. Arnold, 

, 368-369 (3d Cir. 2000). Such provisions include the

“discovery rule,” which tolls the statute of limitations where the plaintiff neither knew nor

reasonably should have known of his injury and its cause at the time his right to institute

suit arose. Northwestern Mut. Life Ins. Co. v. Babayan, 

, 140 n.30 (3d Cir.

2005); Pocono Intern. Raceway, Inc. v. Pocono Produce, Inc., 

, 471 (Pa.

1983). Because the various injuries Huertas alleges were incident to his arrest in October

2000, the instant complaint is barred unless equitable tolling applies.

       Huertas states that he was hampered in the prosecution of his first action by the

City’s persistent refusal to provide him with the addresses of the individual defendants,

that this prevented him from including the individual defendants in his initial action, and

that his initial action failed due to his lack of experience and preparation. He appears to

offer these reasons not merely to justify filing the second action but also as grounds for

equitable tolling of the statute of limitations. Complaint at ¶¶ 60-71. He also asserts the

discovery rule, claiming that he was unaware until June 2003 of certain evidence

allegedly demonstrating the existence of a conspiracy among the defendants and, thus,

was unaware of his injury until then. 

75-78.

       As we have explained, “[e]quitable tolling is an extraordinary remedy which

should be extended only sparingly.”Hedges v. United States, 

, 751 (3d Cir.

                                              4
2005). Moreover, it is unavailable unless the plaintiff exercised due diligence in pursuing

his claims. 

not made sufficient showing that equitable tolling is

warranted in his case. His ignorance, inexperience and pro se status during the first

action do not toll the statute of limitations. See, Hedges v. United States, 

,

752-753 (3d Cir. 2005); Pocono Intern. Raceway, 

.

       Nor is there any merit in Huertas’ attempt to invoke the discovery rule. His

argument turns on the contention that it was not until June 2003 that he received Sun

Bancorp’s Rule 26(a) disclosures in his previous action. According to Huertas, these

disclosures indicate the existence of a conspiracy manifested by the manner in which a

bank teller “coordinated the attack against the plaintiff by maneuvering and instructing

the police toward the location of the plaintiff.” Complaint at ¶ 80. However, in June 2003

his first action was still pending and he received the materials in question in the course of

those proceedings. Had Huertas exercised the diligence required for equitable tolling,

that action would not have been dismissed – for repeated failure to attend depositions – in

the first place and he would not have needed to file another complaint. Because he did

not exercise due diligence, he may not benefit from equitable tolling and the instant

complaint remains time-barred.

       Accordingly, we will affirm the order of the District Court.




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