Morrison v. Hippensteel's Auto Recon et al

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
ROBERT J. MORRISON, JR., : No. 3:24-CV-1969
:
Plaintiff : (Saporito, J.)
:
v. : (Caraballo, M.J.)
:
HIPPENSTEEL’S AUTO RECON:
and PENNSYLVANIA STATE :
POLICE, :
:
Defendants :
REPORT AND RECOMMENDATION
I. Introduction
On November 15, 2024, Plaintiff Robert J. Morrison, Jr.,
proceeding pro se, initiated this civil rights action against defendants
Hippensteel’s Auto Recon (“Hippensteel”) and the Pennsylvania State
Police (“PSP”). Doc. 1. Morrison, an inmate at the commencement of
this action who since has been released, avers that the defendants
violated his rights by towing his pickup truck on December 21, 2020,
resulting in its ultimate loss. Id. at 4–6.
The Court has federal question jurisdiction, pursuant to Title 28,
United States Code, Section 1331. Both defendants moved to dismiss
the complaint on March 24, 2025. Docs. 17–18. The motions are fully
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briefed, and were referred to the undersigned to issue the instant
Report and Recommendation.
As set forth below, PSP is a state agency that is not subject to
liability, and Morrison has not alleged that Hippensteel is a state actor
liable under Title 42, United States Code, Section 1983. Moreover, the
statute of limitations elapsed prior to Morrison filing this federal action.
Accordingly, the undersigned recommends that the Court grant the
motions to dismiss Morrison’s Section 1983 claims with prejudice, and
decline to exercise supplemental jurisdiction over his claim under the
Pennsylvania Tow Act, 73 P.S. § 1971.3.
II. Background
This action arises out of Morrison’s loss of his 1990 Chevrolet
pickup truck. Doc. 1 at 6. As alleged in the complaint, on December 21,
2020, his pickup truck was parked in a Pennsylvania Fish and Boat
Commission parking lot in Newville, Pennsylvania. Id. at 4. According
to Morrison, PSP “Trooper Vansyock came upon my, Plaintiff’s, truck
and after determining it was mine and my drivers license was
suspended, had Hippensteel’s Auto Recon . . . tow it to thier [sic] auto
storage facility.” Id. The following day, Morrison’s parole officer
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detained him for unspecified reasons, and he remained in state custody
for nearly three years, until August 21, 2023. Id.
Morrison alleges that, beginning in January 2021, he, his family
and friends, and a prison counselor contacted Hippensteel to convey his
incarcerated status and ascertain the cost of recouping the pickup
truck. Id. at 4–5. In August 2022, Morrison commenced a civil action
against PSP in the Cumberland County Court of Common Pleas. Id. at
5. He avers that, “[v]ery shortly thereafter the PSP being served the
civil suit, PSP had my truck declared abandoned to the PA DMV.
Which in turn gave me 30 days to claim my truck or [Hippensteel] was
to destroy it.” Id. Although Morrison does not specify whether his
truck was in fact destroyed or exactly when PSP declared it abandoned,
he alleges that he lost the truck, and that the events giving rise to his
claim ended in October 2022. Id. at 4, 6. Morrison subsequently added
Hippensteel as a defendant in the county civil suit, but his efforts
ultimately proved unsuccessful. Id. at 5. He thus proceeded to seek
relief in federal court.
Morrison’s federal complaint, filed on November 15, 2024, asserts
claims under Section 1983, alleging violations of his rights under the
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Fourth Amendment (unreasonable search and seizure), Eighth
Amendment (cruel and unusual punishment), and Fourteenth
Amendment (due process). Id. at 6. Morrison also appears to assert a
violation of Pennsylvania’s tow truck operators and towing storage
facilities standards, pursuant to the Pennsylvania Tow Act. Id.
Although Morrison does not specify which claims are asserted against
which defendants, the undersigned construes the pro se complaint
liberally, see Rivera v. Monko, 37 F.4th 909, 914 (3d Cir. 2022), as
asserting all claims against both Hippensteel and PSP.
Morrison applied for and received leave to proceed in forma
pauperis. Docs. 9–10. Following service of the complaint, both
defendants lodged timely motions to dismiss on March 24, 2025, and
subsequent supporting briefs. Docs. 17–20. After Morrison failed to
respond to either motion, the undersigned ordered him to file individual
responses by May 27, 2025. Doc. 22. Although Morrison did not file
individual responses, as instructed, he mailed an omnibus brief in
opposition on May 27, 2025, which was docketed on May 29, 2025. Doc.
23. The Defendants submitted timely replies. Docs. 26–27.
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Further, at the undersigned’s direction, Hippensteel submitted a
supplemental brief, in which it asserted a statute of limitations defense
initially raised only by PSP. Doc. 29. The undersigned ordered
Morrison to file any response to the supplemental brief by January 27,
2026, Doc. 30, but he did not avail himself of that opportunity. The
motions are thus fully briefed and ripe for decision.
III. Discussion
A. Legal Standard
Upon motion of a party, a court may dismiss a complaint for its
“failure to state a claim upon which relief can be granted.” Fed. R. Civ.
P. 12(b)(6). “To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that
is plausible on its face.” Connelly v. Lane Constr. Corp., 809 F.3d 780,
786 (3d Cir. 2016) (quotation omitted) (citing Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)); see also Fed. R. Civ. P. 8(a)(2) (“A pleading that states
a claim for relief must contain a short and plain statement of the claim
showing that the pleader is entitled to relief.”).
Plausibility in this context means neither possibility nor
probability. United States ex rel. Bookwalter v. UPMC, 946 F.3d 162,
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177 (3d Cir. 2019). Instead, “[a] claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct
alleged.” Connelly, 809 F.3d at 786 (quotation omitted) (first citing
Iqbal, 556 U.S. at 678; and then citing Sheridan v. NGK Metals Corp.,
609 F.3d 239, 262 n.27 (3d Cir. 2010)).
The Court of Appeals uses a three-step inquiry in determining a
complaint’s sufficiency under Rule 12(b)(6). Santiago v. Warminster
Twp., 629 F.3d 121, 130 (3d Cir. 2010); see, e.g., Lutz v. Portfolio
Recovery Assocs., LLC, 49 F.4th 323, 328 (3d Cir. 2022); Connelly,
809 F.3d at 787. First, the reviewing court “tak[es] note of the elements
[the] plaintiff must plead to state a claim.” Connelly, 809 F.3d at 787
(second alteration in original) (quotation omitted) (quoting Iqbal,
556 U.S. at 675). The second phase is to “identify allegations that,
‘because they are no more than conclusions, are not entitled to the
assumption of truth.’” Id. (first quoting Iqbal, 556 U.S. at 679; and then
citing Burtch v. Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011)).
Finally, “[w]hen there are well-pleaded factual allegations, [the]
court should assume their veracity and then determine whether they
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plausibly give rise to an entitlement to relief.” Id. (alterations in
original) (quotation omitted) (quoting Iqbal, 556 U.S. at 679). This last
step is done “in the light most favorable to [the plaintiff].” Kedra v.
Schroeter, 876 F.3d 424, 434 (3d Cir. 2017) (alteration in original)
(quotation omitted) (quoting Phillips v. Cnty. of Allegheny, 515 F.3d
224, 228, 230 (3d Cir. 2008)). “If, after completing this process, the
complaint alleges ‘enough fact[s] to raise a reasonable expectation that
discovery will reveal evidence of’ the necessary elements of a claim,
then it plausibly pleads a claim.” Lutz, 49 F.4th at 328 (alteration in
original) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2009)).
If “a complaint pleads facts that are merely consistent with a
defendant’s liability, it stops short of the line between possibility and
plausibility of entitlement to relief.” Id. (quotation omitted) (quoting
Bell, 550 U.S. at 556). That is, “[c]onclusory allegations of liability are
insufficient.” Garrett v. Wexford Health, 938 F.3d 69, 92 (3d Cir. 2019)
(citing Iqbal, 556 U.S. at 678). “Evaluating a motion to dismiss is ‘a
context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.’” Bookwalter, 946 F.3d at 177
(quoting Iqbal, 556 U.S. at 679).
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Further, “[c]omplaints filed by pro se litigants, . . . are liberally
construed, but must still ‘allege sufficient facts . . . to support a claim.’”
Rivera, 37 F.4th at 914 (first citing Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam); and then quoting Mala v. Crown Bay Marina, Inc.,
704 F.3d 239, 245 (3d Cir. 2013) (citation omitted)). As the Court of
Appeals has repeatedly explained, pro se litigants “cannot flout
procedural rules—they must abide by the same rules that apply to all
other litigants.” Vogt v. Wetzel, 8 F.4th 182, 185 (3d Cir. 2021) (quoting
Mala, 704 F.3d at 244–45).
B. Section 1983 Liability
PSP contends that it cannot be held liable under Section 1983
because it is a state agency, not a “person” who allegedly violated
Morrison’s constitutional rights. Doc. 19 at 5. Hippensteel likewise
avers that, as a private towing company, it is not a state actor subject to
Section 1983 liability. Doc. 20 at 7–9. Morrison refutes both positions.
Doc. 23 at 3. As his complaint does not advance an actionable Section
1983 claim against either entity, dismissal is warranted.
The Civil Rights Act of 1871 provides that:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
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District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity,
or other proper proceeding for redress . . . .
42 U.S.C. § 1983. Section 1983 “is not a source of substantive rights but
rather a mechanism to vindicate rights afforded by the Constitution or
a federal statute.” Black v. Montgomery Cnty., 835 F.3d 358, 364 (3d
Cir. 2016) (citing Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)).
Thus, “the basic cause of action requires that a § 1983 plaintiff prove
two essential elements: (1) that the conduct complained of was
committed by a person acting under color of state law; and (2) that the
conduct deprived the plaintiff of rights, privileges, or immunities
secured by the Constitution or laws of the United States.” Schneyder v.
Smith, 653 F.3d 313, 319 (3d Cir. 2011) (citations omitted).
As set forth in the plain language of the statute and interpretive
precedent, a Section 1983 claim lies against a person acting under color
of state law. Neither a state nor its agencies, including the state police,
are considered a “person” under Section 1983 and, thus, are not subject
to liability. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71
(1989) (holding that a state is not a “person” who may be sued under
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Section 1983). PSP is therefore correct that it is not a person within the
meaning of Section 1983 and must be dismissed from those claims as a
matter of law. See Burnsworth v. PC Lab., 2008 WL 4372861, at *7
(W.D. Pa. 2008) (“The court finds that Pennsylvania State Police is not
suable under Section 1983 because it is not a person within the
meaning of Section 1983”), aff’d, 364 F. App’x 772 (3d Cir. 2010).
Morrison appears to contend that, because he referenced Trooper
Vansyock in the factual allegations of his complaint, his claim against
PSP may proceed. Doc. 23 at 3. Trooper Vansyock is not, however, a
named defendant in this action, and thus has never appeared as a
party. Simply identifying him in the allegations of the complaint does
not manufacture a cognizable action against his employer, PSP, as
liability for civil rights violations cannot be premised on “a theory of
respondeat superior or vicarious liability,” Natale v. Camden Cnty.
Corr. Facility, 318 F.3d 575, 583 (3d Cir. 2003), in which liability is
imposed “solely on the basis of the existence of an employer-employee
relationship with a tortfeasor.” Monell v. N.Y. City Dept. of Soc. Servs.,
436 U.S. 658, 692 (1978). Accordingly, the undersigned recommends
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dismissal of Morrison’s Section 1983 claims under the Fourth,
Fourteenth, and Eighth Amendments against PSP.
The inquiry concerning Hippensteel’s potential liability under
Section 1983 turns on whether it can be deemed a state actor.
“Although a private [party] may cause a deprivation of . . . a right, [it]
may be subjected to liability under § 1983 only when [it] does so under
color of law.” Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156 (1978)
(citation omitted). There is no “simple line” distinguishing “state
action” from “private conduct.” Brentwood Acad. v. Tenn. Secondary
Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001) (citations omitted). That
determination hinges on “whether there is such a close nexus between
the State and the challenged action that seemingly private behavior
may be fairly treated as that of the State itself.” Kach v. Hose, 589 F.3d
626, 646 (3d Cir. 2009) (citation and quotation omitted).
A plaintiff may allege that nexus in one of three ways: (1) “the
private entity has exercised powers that are traditionally the exclusive
prerogative of the state”; (2) “the private party has acted with the help
of or in concert with state officials”; or (3) “the State has so far
insinuated itself into a position of interdependence with the acting
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party that it must be recognized as a joint participant in the challenged
activity.” Mark v. Borough of Hatboro, 51 F.3d 1137, 1142–43 (3d Cir.
1995) (cleaned up). Under each avenue, “[t]he inquiry is fact-specific.”
Groman v. Twp. of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995)
(citations omitted); see also Crissman v. Dover Downs Ent. Inc., 289
F.3d 231, 234 (3d Cir. 2002) (en banc) (“the facts are crucial”).
Unsurprisingly, the fact-specific nature of that determination has
yielded disparate conclusions in this district concerning the potential
liability of towing companies under Section 1983. Compare, e.g.,
Campbell v. Lowery, 2023 WL 11983729, at *5–6 (M.D. Pa. 2023)
(finding no plausible allegations under Section 1983 claim that towing
company and its employee acted under color of state law when reporting
discovery of narcotics in towed vehicle to the police), report and
recommendation adopted, 2023 WL 11983730 (M.D. Pa. 2023);
Laganella v. Don’s & Son’s Towing & Body Shop, 2011 WL 7063643, at
*18–20 (M.D. Pa. 2011) (deeming allegations that towing company was
“the contracted towing service for the City” but not that it “had a
contract with the City” insufficient to allege state actor liability), report
and recommendation adopted, 2012 WL 162288 (M.D. Pa. 2012);
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Kasarda v. Kattner, 2005 WL 1322765, at *2, 8–9 (M.D. Pa. 2005)
(deeming towing company not a state actor when it towed vehicle at
behest of state constable), report and recommendation adopted, No.
3:04-CV-2058 at Doc. 32 (M.D. Pa. 2005), with Toyota Motor Credit
Corp. v. Borough of Wyoming, 2023 WL 7412941, at *1–2 (M.D. Pa.
2023) (finding plausible allegations that towing company was state
actor when it regularly towed and stored vehicles seized by police free of
charge, to collect fees from the vehicle owner or ultimately sell the
vehicle); Walker v. Wentz, 2009 WL 700112, at *1 n.3 (M.D. Pa. 2009)
(deeming allegations sufficient to allege action under state law when
towing company was retained by city to remove impounded vehicles,
and specifically instructed by police officers to tow defendant’s vehicle);
Mays v. Scranton City Police Dep’t, 503 F. Supp. 1255, 1263–64 (M.D.
Pa. 1980) (finding that tower acted under color of state law when acting
pursuant to state law and police direction).
Here, Morrison does not advance any allegations concerning a
nexus between the Defendants that plausibly portray Hippensteel as a
state actor subject to Section 1983 liability. Rather, he alleges simply
that Trooper Vansyock “had Hippensteel’s Auto Recon . . . tow” his
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pickup truck to its storage facility, and that PSP subsequently declared
his truck abandoned to the Pennsylvania DMV, triggering the 30-day
deadline to claim it or risk destruction by Hippensteel. Doc. 1 at 4–5.
Absent from those averments are any claims that Hippensteel exercised
a traditional government function, that it acted in concert with PSP, or
that the Defendants had a symbiotic interdependence. See Mark, 51
F.3d at 1142–43. Without further factual background, Morrison’s
allegations do not assert a cognizable claim under Section 1983.
In his opposition, Morrison contends that Hippensteel was
“complicit with a PSP Trooper in an illegal activity and violating my
constitutional rights acting ‘under color of state law.’” Doc. 23 at 3. He
does not specify the alleged illegal activity, but a liberal review of the
filing concludes that Morrison is focused on the towing of his pickup
truck. As an initial matter, Morrison cannot bolster his pleading
deficiencies through briefing, as a “complaint may not be amended by
the briefs in opposition to a motion to dismiss.” Gov’t Employees Ins.
Co. v. Mount Prospect Chiropractic Ctr., P.A., 98 F.4th 463, 472 (3d Cir.
2024) (quoting Pennsylvania ex rel. Zimmerman v. PepsiCo, Inc., 836
F.2d 173, 181 (3d Cir. 1988)) (some citations omitted). And even if the
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Court considered those new allegations in Morrison’s opposition brief,
their conclusory nature would not remedy the deficiencies in his
complaint. See Garrett, 938 F.3d at 92.
Accordingly, the undersigned recommends dismissal of Morrison’s
Section 1983 claims under the Fourth, Fourteenth, and Eighth
Amendments against Hippensteel. Ordinarily, these pleading
deficiencies concerning both defendants might warrant dismissal
without prejudice, as “a district court should generally permit a
curative amendment, unless an amendment would be inequitable or
futile.” Lutz, 49 F.4th at 328 (quotation and citation omitted); Fed. R.
Civ. P. 15(a)(2). Particularly when, as here, a pro se complainant was
not previously afforded leave to amend, “the court should freely give
leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). As explained
below, however, further amendment to Morrison’s for Section 1983
claims would be futile in consideration of the statute of limitations.
C. Statute of Limitations for Section 1983 Claims
The Defendants contend that, because Morrison’s federal
complaint was filed over two years after it became actionable, his
Section 1983 claims are barred by the statute of limitations. Docs. 19 at
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4–5; 29 at 1–3. In response, Morrison appears to concede that his
complaint was untimely, but avers that the statute of limitations does
not apply because the Court accepted his complaint. Doc. 23 at 1–2.
Simply filing a litigation, however, does not foreclose a statute of
limitations defense, and the undersigned accordingly recommends
dismissing the Section 1983 claims with prejudice.
The statute of limitations is an affirmative defense raised by a
party in response to a pleading. Fed. R. Civ. P. 8(c)(1). Thus, the
Court’s acceptance of a filed pleading, as with Morrison’s complaint
here, does not proactively deprive a defendant of that affirmative
defense. As explained by the Court of Appeals:
Technically, the Federal Rules of Civil Procedure require a
defendant to plead an affirmative defense, like a statute of
limitations defense, in the answer, not in a motion to dismiss.
. . . In this circuit, however, we permit a limitations defense
to be raised by a motion under Rule 12(b)(6) only if the time
alleged in the statement of a claim shows that the cause of
action has not been brought within the statute of limitations.
. . . However, [i]f the bar is not apparent on the face of the
complaint, then it may not afford the basis for a dismissal of
the complaint under Rule 12(b)(6).
Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014) (citations and
quotations omitted).
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“When considering a civil rights claim, federal courts apply the
relevant state’s statute of limitations for personal injury actions.”
Lomax v. Tennis, 708 F. App’x 55, 57 (3d Cir. 2017) (citation omitted).
In Pennsylvania, “[t]he statute of limitations applicable to § 1983 claims
. . . is two years.” Wisniewski v. Fisher, 857 F.3d 152, 157 (3d Cir. 2017)
(citing Knoll v. Springfield Twp. Sch. Dist., 763 F.2d 584, 585 (3d Cir.
1985)); 42 Pa. Cons. Stat. § 5524.
By contrast, “the accrual date of a § 1983 cause of action is a
question of federal law that is not resolved by reference to state law.”
Wallace v. Kato, 549 U.S. 384, 388 (2007) (emphasis in original). The
“action accrues, and the statute of limitations commences to run, when
the wrongful act or omission results in damages. The cause of action
accrues even though the full extent of the injury is not then known or
predictable.” Id. at 391 (citation and quotation omitted). That is, under
federal law, a “cause of action accrues when the plaintiff knew or should
have known of the injury upon which its action is based.” Sameric
Corp. of Del., Inc. v. City of Phila., 142 F.3d 582, 599 (3d Cir. 1998)
(citation omitted). Knowledge of an injury, actual or otherwise, is
established through reference to “when the wrongful act or omission
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results in damages.” Dique v. N.J. State Police, 603 F.3d 181, 185–86
(3d Cir. 2010) (citations and quotation omitted).
Here, the statute of limitations bar is apparent on the face of
Morrison’s complaint, thus permitting adjudication of the defense on a
Rule 12(b)(6) motion. Morrison does not particularize the precise
theories or supporting allegations underlying his Section 1983 claims
alleging violations of the Fourth, Fourteenth, and Eighth Amendments.
For Section 1983 claims premised on unreasonable searches and
seizures in violation of the Fourth Amendment, a claim begins to accrue
“when the search and seizure occurred . . . .” Woodson v. Payton, 503 F.
App’x 110, 112 (3d Cir. 2012) (per curiam). Thus, construing the
complaint liberally, Morrison’s Fourth Amendment claim is tethered to
the December 21, 2020, towing of his pickup truck. Doc. 1 at 4. As
Morrison acknowledges being aware of the towing by at least January
2021, if not earlier, id., the corresponding statute of limitations began to
accrue no later than January 2021, and elapsed no later than January
2023. This action, filed on November 15, 2024, is thus well beyond the
two-year statute of limitations.
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A similar analysis applies to Morrison’s Fourteenth Amendment
due process claim. Although he does not specify whether it is premised
on the towing of his pickup truck, subsequent efforts to preserve and
recover the truck from Hippensteel, PSP’s actions in declaring the truck
abandoned and enabling Hippensteel to destroy it after a 30-day
window, or some combination of those events, id. at 4–5, this action was
filed beyond the latest potential accrual date. Morrsion advises that
“very shortly after” he filed a civil suit in August 2022, “PSP had my
truck declared abandoned to the PA DMV. Which in turn gave me 30
days to claim my truck or [Hippensteel] was to destroy it.” Id. at 5.
Elsewhere in the complaint, he clarifies that the events giving rise to
his claim concluded in October 2022. Id. at 4. Thus, even if the basis
for Morrison’s due process claim, construed liberally, lies in the final
sequence of events involving his pickup truck, the statute of limitations
accrued in October 2022, and elapsed in October 2024, before he filed
this federal action.
Morrison’s Eighth Amendment claim is styled as one concerning
“Bail and Punishment – cruel and unusual punishment.” Id. at 6. His
factual allegations, however, do not reference any bail terms or
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conditions of confinement related to his state criminal matter. Rather,
he simply alleges that he was detained between December 22, 2020, and
August 21, 2023, while the events concerning his pickup truck unfolded.
Id. at 4–5. To the extent that Morrison’s Eighth Amendment claim is
somehow premised on the towing and ultimate disposition of his pickup
truck, the statute of limitations applies for the same reasons set forth
above concerning his Fourteenth Amendment claim.
Alternatively, PSP implies that the Eighth Amendment claim
arises out of Morrison’s state criminal case bail conditions. Doc. 19 at 5.
PSP offers a copy of Morrison’s county court docket, showing that his
conditions of bail were set on February 25, 2021. Doc. 19-1 at 3. The
Court may take judicial notice of state court filings, as they are matters
of public record, in the Rule 12 context. See O’Boyle v. Braverman,
337 F. App’x 162, 164–65 (3d Cir. 2009); Beverly Enters., Inc. v. Trump,
182 F.3d 183, 190 n.3 (3d Cir. 1999); Fed. R. Evid. 803(8). Accordingly,
even if Morrison’s Eighth Amendment claim arises out of his bail
conditions, the statute of limitations elapsed in February 2023; long
before he filed this federal action.
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To the extent Morrison contends that his civil litigation in the
Cumberland County Court of Common Pleas somehow tolled the statute
of limitations for his federal litigation, Doc. 23 at 2, it did not. When
determining whether a statute of limitations is subject to tolling, state
law governs. Vernau v. Vic’s Mkt., Inc., 896 F.2d 43, 45 (3d Cir.1990)
(“state tolling principles are generally to be used by a federal court
when it is applying a state limitations period[.]”). Under Pennsylvania
law, “the commencement of a related suit in state court does not toll the
running of a Pennsylvania statute of limitations against a federal cause
of action.” Soppick v. Borough of W. Conshohocken, 118 F. App’x 631,
636 (3d Cir. 2004) (first citing Ammlung v. City of Chester, 494 F.2d
811, 816 (3d Cir. 1974); and then citing Falsetti v. Loc. Union No.2026,
United Mine Workers of Am., 355 F.2d 658, 662 (3d Cir. 1966)). Indeed,
as noted by Hippensteel, Doc. 29 at 2–3, Morrison’s filing of the
companion state action in August 2022 corroborates his knowledge of
his alleged injury and accrual of the statute of limitations.
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As Morrison’s Section 1983 claims are thus precluded as time
barred, the undersigned recommends dismissing them with prejudice.1
D. Pennsylvania Tow Act Claim
In his complaint, Morrison lists a claim under the Pennsylvania
Tow Act, 73 P.S. § 1971.3, albeit not in a numbered fashion as with his
Section 1983 claims. Doc. 1 at 6. PSP does not address this claim in its
motion to dismiss, and Hippensteel avers that Section 1971.3 does not
provide a private cause of action. Docs. 20 at 9; 26 at 4.
Hippensteel does not offer any authority for its position, and the
undersigned has not located any interpretive guidance, federal or state.
At least one Pennsylvania appellate court declined to address whether
private litigants have a cause of action under Section 1971.3. See
Zokaites Properties, LP v. Nickolich, 2018 WL 5118053, at *4 (Pa.
Super. Ct. 2018). Although the specific section cited by Morrison does
not authorize a private right of action, see generally 73 P.S. § 1971.3,
the Tow Act provides that a “violation of this act is also a violation of
the . . . Unfair Trade Practices and Consumer Protection Law.” Id.
1 PSP also challenges whether Morrison’s complaint advances cognizable claims for
relief, Doc. 19 at 6–8, while Hippensteel raises a res judicata defense. Doc. 20 at 3–
7. In consideration of the grounds for dismissal set forth herein, addressing these
alternate contentions is unnecessary.
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§ 1971.4. In turn, the Pennsylvania Unfair Trade Practices and
Consumer Protection Law contains enforcement provisions that include
private rights of action. See id. § 201-9.2.
Against that backdrop, the undersigned recommends that the
Court decline to exercise supplemental jurisdiction over Morrison’s Tow
Act claim, and dismiss it without prejudice. As the Court previously
summarized:
[W]here a district court has dismissed all claims over which it
had original jurisdiction, the Court may decline to exercise
supplemental jurisdiction over state law claims. 28 U.S.C.
§ 1367(c)(3). Whether the Court will exercise supplemental
jurisdiction is within its discretion. Kach v. Hose, 589 F.3d
626, 650 (3d Cir. 2009). That decision should be based on “the
values of judicial economy, convenience, fairness, and comity.”
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988).
Ordinarily, when all federal law claims have been dismissed
and only state-law claims remain, the balance of these factors
indicates that these remaining claims properly belong in state
court. Cohill, 484 U.S. at 350.
Campbell, 2023 WL 11983729, at *6 (citations in original).
Title 28, United States Code, Section 1367 specifically authorizes
the declination of supplemental jurisdiction over state claims that raise
novel issues of state law, or in scenarios where “the district court has
dismissed all claims over which it has original jurisdiction.” 28 U.S.C. §
1367(c)(1), (3). Both of those circumstances apply here, where the
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Pennsylvania courts are more appropriately situated to determine the
scope of Morrison’s remaining claim under the Pennsylvania Tow Act.
E. Hippensteel’s Request for Injunctive Relief
Hippensteel requests that the Court issue an injunction “barring
Plaintiff from pursuing additional pro se litigation against Defendants
raising the same or related claims without leave of court, because pro se
Plaintiff is alleging the same or related claims which pro se Plaintiff
raised in a prior action against the same Defendants.” Doc. 18 at 1.
Hippensteel does not offer any authority or additional reasoning for
that request.
Under the All Writs Act, a district court may “issue an order
restricting the filing of meritless cases by a litigant whose manifold
complaints raise claims identical or similar to those that already have
been adjudicated.” In re Oliver, 682 F.2d 443, 445 (3d Cir. 1982). As
the Court of Appeals cautioned, “any such order is an extreme remedy,
and should be used only in exigent circumstances.” Id. at 445–46
(agreeing that a pro se plaintiff’s filing of 51 district court litigations
and 24 appeals constituted “a continuous pattern of groundless and
vexatious litigation” warranting a prohibitive injunction). Thus,
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“[w]hen a district court is confronted with a pattern of conduct from
which it can only conclude that a litigant is intentionally abusing the
judicial process and will continue to do so unless restrained,” the court
“is entitled to resort to its power of injunction and contempt to protect
its process.” Abdul-Akbar v. Watson, 901 F.2d 329, 333 (3d Cir. 1990).
Those extreme circumstances are not evident here, and
Hippensteel offers no elaboration for its request beyond noting that
Morrison raised similar claims in a state litigation. Doc. 18 at 1. That
record alone does not justify the extraordinary measure of barring a
litigant’s access to the courts. Accordingly, the undersigned
recommends denying Hippensteel’s request for injunctive relief.
IV. Recommendation
For the reasons set forth above, it is RECOMMENDED that:
1. The defendants’ motions to dismiss (Docs. 17–18) be
GRANTED, the plaintiff’s claims under 42 U.S.C. § 1983 be
DISMISSED WITH PREJUDICE, the plaintiff’s claims
under 73 P.S. § 201-9.2 be DISMISSED WITHOUT
PREJUDICE, and this action be DISMISSED;
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2. Defendant Hippensteel’s Auto Recon’s request that the Court
enter an injunction barring the plaintiff from pursuing
future pro se litigation against the defendants raising the
same or related claims, without leave of court, be DENIED;
and
3. The Clerk’s Office be DIRECTED to TERMINATE
Hippensteel’s Auto Recon and Pennsylvania State Police as
the defendants and CLOSE this case.
The parties are further placed on notice that, pursuant to Local
Rule 72.3:
Any party may object to a magistrate judge’s proposed
findings, recommendations or report addressing a motion or
matter described in 28 U.S.C. § 636 (b)(1)(B) or making a
recommendation for the disposition of a prisoner case or a
habeas corpus petition within fourteen (14) days after being
served with a copy thereof. Such party shall file with the clerk
of court, and serve on the magistrate judge and all parties,
written objections which shall specifically identify the
portions of the proposed findings, recommendations or report
to which objection is made and the basis for such objections.
The briefing requirements set forth in Local Rule 72.2 shall
apply. A judge shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made and may accept,
reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge. The judge,
however, need conduct a new hearing only in his or her
discretion or where required by law, and may consider the
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record developed before the magistrate judge, making his or
her own determination on the basis of that record. The judge
may also receive further evidence, recall witnesses or
recommit the matter to the magistrate judge with
instructions.
M.D. Pa. L. R. 72.3. The failure to file timely objections to the foregoing
Report and Recommendation may constitute a waiver of any appellate
rights. See Nara v. Frank, 488 F.3d 187, 194 (3d Cir. 2007).
Date: January 28, 2026 s/ Phillip J. Caraballo
Phillip J. Caraballo
United States Magistrate Judge
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