Tearpock-Martini v. Borough of Shickshinny

Decision Date20 March 2014
Docket NumberNo. 13–3876.,13–3876.
Citation756 F.3d 232
PartiesFrancene TEARPOCK–MARTINI, Appellant v. BOROUGH OF SHICKSHINNY; Jule Moore; Michael Steeber; Rosalie Whitebread; James Wido.
CourtU.S. Court of Appeals — Third Circuit

OPINION TEXT STARTS HERE

Filed: June 23, 2014.

Barry H. Dyller, Esq., Dyller Law Firm, Wilkes–Barre, PA, for Appellant.

John J. Mahoney, Esq., Siana, Bellwoar & McAndrew, Chester Springs, PA, for Appellees.

Before: CHAGARES, GREENAWAY, JR., and VANASKIE, Circuit Judges.

OPINION OF THE COURT

VANASKIE, Circuit Judge.

In 2008, Appellee Borough of Shickshinny (“Shickshinny”) approved placement of a religious-themed sign on municipal property near the home of Appellant Francene Tearpock–Martini (Tearpock–Martini). In 2012, Tearpock–Martini brought this civil rights action, challenging the placement of the sign as a violation of the Establishment Clause of the First Amendment of the Constitution of the United States. At issue in this appeal is whether an Establishment Clause challenge under 42 U.S.C. § 1983 to a still-existing monument erected on municipal property is subject to a state-law statute of limitations. We hold that it is not. Accordingly, we will vacate the District Court's ruling that the Establishment Clause challenge advanced by Tearpock–Martini is time-barred. With respect to her other claims—that the refusal of Shickshinny to allow her to erect her own nearby sign violated her rights to free speech and equal protection of the law—we conclude that Pennsylvania's statute of limitations does apply, and will affirm the District Court's dismissal of those claims on limitations grounds.

I.

Tearpock–Martini, a resident of Shickshinny, Pennsylvania, owns property situated at the intersection of South Main Street and Furnace Street.1 In 2008, a local pastor sought to place a directional sign for his church near her property. Tearpock–Martini objected. At an August 2008 meeting, the Shickshinny Borough Council voted to approve the installation of the sign on the Borough's right of way bordering Tearpock–Martini's property.2 On August 18, 2008, Shickshinny employees installed the sign, which reads: “Bible Baptist Church Welcomes You!” It has a directional arrow with “1 BLOCK” written on it, and depicts a gold cross and a white Bible.

To protest the placement of the sign, Tearpock–Martini installed, on her property directly in front of the church sign, a posting of her own, which read: “This Church Sign Violates My Rights As A Taxpayer & Property Owner. Residential Neighborhoods Are Not Zoned For Advertisement Signs!” Shickshinny, by way of a letter and also a verbal warning from its Code Enforcement Officer, told Tearpock–Martini that she could be charged with summary offenses if she did not remove her sign. Tearpock–Martini evidently removed her sign in response to these threats.3 At some unspecified time thereafter, the town reinforced the installation of the church sign using heavy equipment and poured concrete.

In November 2012, Tearpock–Martini filed a civil rights complaint pursuant to 42 U.S.C. § 1983. She later filed a three-count Amended Complaint. Count One asserts an Equal Protection claim based upon the refusal to allow her to erect her own sign; Count Two asserts that Appellees violated, and continue to violate, the Establishment Clause by authorizing the installation and ongoing presence of the church sign; and Count Three avers that Appellees violated the First Amendment by threatening to prosecute Tearpock–Martini for installation of her own sign. She seeks injunctive relief consisting of removal of the church sign, as well as damages.

Appellees moved to dismiss the Amended Complaint based on, among other things, Pennsylvania's two-year statute of limitations for tort claims. In a Memorandum and Order entered August 19, 2013, the District Court found that Tearpock–Martini's claims were time-barred, and granted the motion to dismiss. Tearpock–Martini filed a timely notice of appeal.

II.

The District Court had jurisdiction over this case pursuant to 28 U.S.C. §§ 1331 and 1343. We have jurisdiction over the District Court's final order pursuant to 28 U.S.C. § 1291. Our review of a dismissal under Rule 12(b)(6) is de novo. Fowler v. UPMC Shadyside, 578 F.3d 203, 206 (3d Cir.2009).

III.

The Establishment Clause, which states that Congress shall make no law respecting an establishment of religion[,] U.S. Const. amend. I, prevents any branch of federal, state, or municipal government from “act[ing] with the ostensible and predominant purpose of advancing religion....” McCreary Cnty., Ky. v. ACLU of Ky., 545 U.S. 844, 860, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005). Although the precise contours of that command have historically resisted definition even by our highest Court,4 it is undisputed that religious displays erected by the State, whether enduring or only temporary, may sometimes stand in violation of the Constitution. See, e.g., id. at 881, 125 S.Ct. 2722 (concluding that courthouse display of the Ten Commandments violated the Establishment Clause).

Section 1 of the Civil Rights Act of 1871, codified at 42 U.S.C. § 1983, is the vehicle by which an individual may sue government officials in tort for violations of constitutional rights, including those arising under the Establishment Clause.5 Although federal law provides no statute of limitations for actions brought under § 1983, state law may provide a limitations period “if it is not inconsistent with federal law or policy to do so.” Wilson v. Garcia, 471 U.S. 261, 266–67, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985) (citing 42 U.S.C. § 1988), superseded by statute on other grounds,28 U.S.C. § 1658(a); see also Dique v. N.J. State Police, 603 F.3d 181, 185 (3d Cir.2010). Because the Supreme Court has clarified that “all § 1983 claims should be characterized for statute of limitations purposes as actions to recover damages for injuries to the person [,] Springfield Twp. Sch. Dist. v. Knoll, 471 U.S. 288, 289, 105 S.Ct. 2065, 85 L.Ed.2d 275 (1985), the ostensibly applicable term here is Pennsylvania's two-year limitations period applicable to tort claims, see42 Pa. Cons.Stat. Ann. § 5524(7).6 The date of the claim's accrual, however, continues to be governed by federal law, see Wallace v. Kato, 549 U.S. 384, 388, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007), although state law generally governs tolling and its effects, see Chardon v. Soto, 462 U.S. 650, 655, 103 S.Ct. 2611, 77 L.Ed.2d 74 (1983).

Tearpock–Martini does not dispute that more than two years elapsed between the installation of the church sign by Appellees and the commencement of her lawsuit.7 Instead, she invokes the continuing-violation doctrine, which “is an ‘equitable exception to the timely filing requirement.’ Cowell v. Palmer Twp., 263 F.3d 286, 292 (3d Cir.2001) (quoting West v. Phila. Elec. Co., 45 F.3d 744, 754 (3d Cir.1995)). In brief, the rule provides that “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.” Brenner v. Local 514, United Bhd. of Carpenters & Joiners of Am., 927 F.2d 1283, 1295 (3d Cir.1991). The doctrine's focus “is on affirmative acts of the defendants.” Cowell, 263 F.3d at 293.

The reach of this doctrine is understandably narrow. We have often applied it in employment discrimination cases, where only in retrospect will a plaintiff recognize that seemingly unconnected incidents were, in fact, part and parcel of a larger discriminatory pattern. See Mandel v. M & Q Packaging Corp., 706 F.3d 157, 165–67 (3d Cir.2013) (citing Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002)). Under such circumstances, equity demands that so long as the most recent offensive utterance or adverse action occurred within the limitations period, the entire scope of that continuing violation may be considered. Id. We have cautioned, however, that equitable relief from the statutory limitations period is appropriate only where the alleged violation is ‘occasioned by continual unlawful acts, not continual ill effects from an original violation.’ Cowell, 263 F.3d at 293 (quoting Ocean Acres Ltd. v. Dare Cnty. Bd. of Health, 707 F.2d 103, 106 (4th Cir.1983)).8

The only cases lending credence to Tearpock–Martini's theory that a monument which contravenes the Establishment Clause is a continuing act giving rise to a newly accrued right on each day of its existence, as opposed to a continuing effect of the original installation, come from the Seventh Circuit. In Gonzales v. North Township of Lake County, 800 F.Supp. 676, 684 (N.D.Ind.1992), the district court considered the constitutionality of a monument installed in 1955 and challenged 30 years later. The court, despite ultimately finding no Establishment Clause violation, declined to apply the statute of limitations, explaining that “as each day there is a violation, each day [the plaintiff's] cause of action accrues.” Id. On appeal, the Seventh Circuit reversed, concluding, without disturbing the district court's limitations ruling, that the monument did violate the Establishment Clause. See Gonzales v. N. Twp. of Lake Cnty., 4 F.3d 1412 (7th Cir.1993).

Years later, in Pitts v. City of Kankakee, 267 F.3d 592 (7th Cir.2001), the Seventh Circuit revisited its Gonzales opinion in dicta. The Pitts plaintiffs argued that the city had violated their First Amendment rights by placing defamatory signs on their property in retaliation for certain protected speech. The panel rejected the plaintiffs' argument that the continuing-violation doctrine applied, in part by distinguishing the plaintiffs' claims from an Establishment Clause violation:

The First Amendment's command that there be no establishment of religion stands on a...

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