Koehnke v. City of McKeesport

350 F. App'x 720
CourtCourt of Appeals for the Third Circuit
DecidedOctober 28, 2009
DocketNo. 08-4519
StatusPublished

This text of 350 F. App'x 720 (Koehnke v. City of McKeesport) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Koehnke v. City of McKeesport, 350 F. App'x 720 (3d Cir. 2009).

Opinion

OPINION OF THE COURT

FUENTES, Circuit Judge:

Appellant Sherri Koehnke appeals from the final order of the District Court, which granted Appellees’ motion for summary judgment. Ms. Koehnke filed this lawsuit against the City of McKeesport (the “City”) and two of its police officers, alleging that the police botched their investigation into her daughter’s disappearance and thereby violated Ms. Koehnke’s constitutional rights. The District Court granted the defendants’ motion for summary judgment, concluding that Ms. Koehnke’s claims were time-barred. We will affirm.

I.

We write primarily for the parties, who are familiar with the background of this case, and so we review only those facts necessary to our analysis. Ms. Koehnke is the mother of Tanya Kach, who, in early 1996, resided with Ms. Koehnke’s ex-husband, Jerry Kach, Jr., in McKeesport, [722]*722Pennsylvania. On February 10, 1996, then-fourteen-year-old Tanya ran away from home. Unbeknownst to her parents, Tanya had developed an intimate relationship with Thomas Hose, a thirty-seven-year-old security guard at her school, and on the day she left Mr. Kach’s residence, Tanya moved in with Mr. Hose and his parents without informing anyone of her whereabouts.

After Ms. Koehnke learned that her daughter had gone missing, she noticed Mr. Hose’s telephone number on her telephone bill for the date when Tanya had last visited her home. Ms. Koehnke called Mr. Hose to ask him if he knew anything about Tanya’s disappearance, but Mr. Hose told her that he did not know Tanya and knew nothing about her whereabouts. After Ms. Koehnke spoke with Mr. Hose, she and Mr. Koehnke visited the McKeesport Police Department, where she spoke with Officer Elias. Ms. Koehnke informed Officer Elias that Tanya was friends with Mr. Hose and that Tanya had called him from Ms. Koehnke’s house before her disappearance. Ms. Koehnke also told Officer Elias that she had called Mr. Hose to ask if he knew anything about her daughter’s whereabouts, and that he denied knowing Tanya at all. Police investigators paid a visit to Mr. Hose’s residence; the officers spoke with Mr. Hose but did not enter the premises because Mr. Hose told them that his parents were sleeping inside.

In 1998 or 1999, Ms. Koehnke again informed the McKeesport Police Department that she suspected that Mr. Hose was involved in Tanya’s disappearance. The officer she spoke with assured her that the Department had investigated Mr. Hose and had determined that he “ha[d] nothing to do with” Tanya’s disappearance. (App.92.)

On March 21, 2006, a decade after she ran away from home, Tanya disclosed her identity to Joe Sparico, the owner of a local convenience store, and informed him of the fact that she had been living in Mr. Hose’s home for the last ten years. Mr. Sparico contacted the authorities, and law enforcement officers removed Tanya from Mr. Hose’s home. In the days following these events, Tanya’s reappearance, and the fact that she had spent a decade living with Mr. Hose, were covered extensively by the local media, and reporters had “camped out” in front of Ms. Koehnke’s house. (App.104.) Ms. Koehnke spoke with Tanya on March 23, 2006, and was reunited with her in person the next day.

Ms. Koehnke filed this lawsuit on June 2, 2008, alleging that the City had a policy or custom of failing to train police officers in the handling of missing children cases, as well as a policy or custom of inadequately investigating citizen complaints. She asserts that the defendants violated her due process and equal protection rights. The defendants moved for summary judgment.1 The District Court granted the motion, concluding that the statute of limitations on Ms. Koehnke’s claims expired more than two months before she filed this lawsuit. Koehnke filed this timely appeal.

II.

The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343 and we have jurisdiction under 28 U.S.C. § 1291. Koehnke raises two issues on appeal, one procedural and one substantive. [723]*723She first asserts that the District Court abused its discretion by granting the defendants’ motion for summary judgment before the parties conducted discovery. In addition, she argues that summary judgment was improvidently entered, contending that a factual dispute exists as to the timeliness of her claims. We are not persuaded by either of these arguments, which we address in turn below.

“[W]e review a claim that the district court has prematurely granted summary judgment for abuse of discretion.” Bradley v. United States, 299 F.3d 197, 206 (3d Cir.2002) (citation omitted). The Federal Rules of Civil Procedure expressly permit a defendant to move for summary judgment “at any time,” Fed.R.Civ.P. 56(b), whether or not the parties have conducted discovery. If the non-moving party believes that its adversary’s summary judgment motion is premature, that party is not without recourse. A party that “cannot present facts essential to justify its opposition” may—and, indeed, must—“show[] by affidavit,” Fed.R.Civ.P. 56(f) (emphasis added), how evidence of such facts “would preclude summary judgment.” Bradley, 299 F.3d at 206 (citation omitted). We have been clear that “in all but the most exceptional cases, failure to comply with Rule 56(f) is fatal to a claim of insufficient discovery on appeal.” Id.

Koehnke’s failure to file a Rule 56(f) affidavit is “fatal” to her contention that the District Court’s entry of summary judgment was premature, as we find no exceptional circumstances to justify her unexplained noncompliance with Rule 56(f).2 Id. Indeed, while Koehnke argues that discovery would have enabled her to prove that it was not until long after Tanya reappeared that Koehnke became aware of the police’s failure to search Hose’s residence, we agree with the City that Koehnke did not need to conduct discovery in order to adduce evidence of what she knew and when she knew it. We find no abuse of discretion in the timing of the District Court’s entry of summary judgment.

? We further conclude that the District Court correctly determined that Ms. Koehnke’s claims are time-barred.3 Claims brought pursuant to 42 U.S.C. § 1983 are subject to the statute of limitations “which the State provides for personal-injury torts,” Wallace v. Kato, 549 U.S. 384, 387, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007), which in Pennsylvania is two years. See 42 Pa. Con. Stat. Ann. § 5524. Ordinarily, a section 1983 claim accrues at the time when the injury is sustained—that is, “when the plaintiff has a complete and present cause of action.” Wallace, 549 U.S. at 388, 127 S.Ct. 1091 (internal quotations and citations omitted).

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Bluebook (online)
350 F. App'x 720, Counsel Stack Legal Research, https://law.counselstack.com/opinion/koehnke-v-city-of-mckeesport-ca3-2009.