385 F.

2d 491

Aileen HENIG, a Minor Together With Ludwig Henig and

Geneva M. Henig, Her Parents, Appellants,
v.
Rocco A. ODORIOSO et al.
No. 16279.

United States Court of Appeals Third Circuit.

Argued April 7, 1967.
Decided November 15, 1967.
1

Geneva M. Henig, pro se.

John B. Hannum, Pepper, Hamilton & Scheetz, Philadelphia, Pa., for appellee
F. W. Woolworth Co.

James H. Agger, Krusen, Evans & Byrne, Philadelphia, Pa., for appellees
Wallingford House, Frank A. Loftus and Virginia Martin.

William R. Toal, Jr., Media, Pa., for appellee Estate of W. R. Toal, Dec'd.

Before McLAUGHLIN and GANEY, Circuit Judges, and NEALON, District

Judge.

OPINION OF THE COURT

6

NEALON, District Judge.

Appellants, Ludwig Henig and Geneva M. Henig, filed this Civil Rights action1
in the District Court on March 25, 1964, on behalf of themselves and their
minor daughter, Aileen Henig, seeking to recover damages arising out of an
incident on March 22, 1962, when Aileen Henig was allegedly falsely arrested
and imprisoned. The named defendants were (1) the Radnor Township
Commissioners and police officials who allegedly were responsible for illegally
arresting the girl and falsely accusing her of shoplifting; (2) F. W. Woolworth
Company, Inc., and certain named employees who allegedly aided the police in
their illegal arrest and search of the minor plaintiff; (3) the Judges and

employees of the Delaware County Court, particularly the late Judge Toal by
whose order Miss Henig was adjudged a delinquent and incarcerated; (4) the
Judges of the Pennsylvania Supreme and Superior Courts and certain Court
employees, all of whom allegedly refused to grant the relief sought by
plaintiffs; (5) the Wallingford Home and its named employees, who allegedly
conspired with the Courts in incarcerating the minor plaintiff and who allegedly
inflicted cruel and inhuman treatment upon the girl during her period of
confinement at that institution. The District Court granted defendants' motions
to dismiss2 and this appeal followed.
8

In granting defendants' motions to dismiss, the District Court held that the
claims of all plaintiffs were barred by the applicable Statutes of Limitations
and, further, even assuming that plaintiffs were not barred by the applicable
Statutes of Limitations, their complaints failed to state a cause of action against
any of the defendants named therein.

A condensation of the complaint reveals the following:

10

The minor plaintiff, then eleven years old, was arrested March 22, 1962, in the
F. W. Woolworth Company, Inc., store in Wayne, Pennsylvania, by two Radnor
Township police officers on suspicion of shoplifting. A search of her person
produced three comic books, two pairs of stockings, two flashlight batteries and
a pocket comb, having a total value of $2.32, and for which she had no sales
slip. A preliminary hearing was held in Delaware County Juvenile Court on
March 23, 1962, and a further hearing was scheduled for May 23, 1962, before
Judge William R. Toal, now deceased. At the conclusion of the May 23d
hearing, the minor was placed in the Juvenile Court Detention Center for fiftyone days, until July 13, 1962, at which time, after hearing, Judge Toal found the
minor to be a delinquent and committed her to the Wallingford Home of the
Orphans' Society of Philadelphia.3 The plaintiff's parents appealed to the
Pennsylvania Superior Court and challenged the constitutionality of the
Pennsylvania Juvenile Act,4 but its constitutionality was upheld. (Com. v.
Henig, 200 Pa.Super. 614, 189 A.2d 894 (1963)). An attempt to appeal to the
Pennsylvania Supreme Court was denied and the United States Supreme Court
denied certiorari. (Henig v. Pennsylvania, 375 U.S. 908, 84 S.Ct. 201, 11
L.Ed.2d 148 (1963)).

11

On March 25, 1964, plaintiffs filed a petition to proceed in forma pauperis in

the District Court and it was denied the same day. Following unsuccessful
appeals to this Court and the United States Supreme Court from the District
Court's refusal to allow plaintiffs to proceed in forma pauperis, plaintiffs finally
forwarded the required filing fee to the Clerk of the District Court on October

22, 1964.
12

The complaint, prepared by Mrs. Geneva Henig, is a rambling, disjointed,

inartful document containing many conclusory statements and, generally,
demonstrating an attempt by verbal exaggeration and inflation to portray a
situation of aggrievement where none, in fact, exists.

13

The District Court concluded, and we agree, that a liberal reading of plaintiffs'
allegations reveals that they have pleaded the following causes of action: (1)
false arrest, (2) false imprisonment, (3) slander, and (4) malicious prosecution.

14

Since the Civil Rights Act contains no provision limiting the time within which
an action thereunder may be brought, the applicable Statute of Limitations is
that which the State would enforce had the action seeking similar relief been
brought in State Court. Swan v. Board of Higher Education of City of New
York, 319 F.2d 56 (2d Cir. 1963); Smith v. Cremins, 308 F.2d 187, 98 A.L.
R.2d 1154 (9th Cir. 1962); Mohler v. Miller, 235 F.2d 153 (6th Cir. 1956).
Under Pennsylvania law, the Statute of Limitations is one year for false arrest,
slander, malicious prosecution and certain actions for false imprisonment.5 In
addition, the general Statute of Limitations applicable to all actions to recover
damages for injury wrongfully done to the person is two years. See P.L.E.
Limitation of Actions 31, 32. Therefore, any claim based upon the events
occurring March 22, and March 23, 1962, is barred by the applicable Statutes
of Limitations. With this in mind, we will proceed to analyze the allegations in
the complaint in the order of the defendants named:

15

(a) Radnor Township Officials. Paragraph 2 of the complaint identifies the

Commissioners of Radnor Township in office on March 22, 1962, by name, but
makes no allegation whatsoever of any wrongdoing on their part. Inasmuch as
the reference to the Commissioners in the complaint concerns the date of
March 22, 1962, it is obvious that more than two years had expired prior to the
commencement of the action. Consequently, the action is barred by the Statute
of Limitations. In addition, as noted above, the complaint fails to state a claim
upon which relief can be granted.

16

(b) Radnor Township Police Officers. The complaint names four police officers
as defendants and charges two of them, C. Russell Fleming and Henry P.
Jansen, with seizing the minor on March 22, 1962, and extracting a false
confession "under the implied promise that she would be released if she
confessed to something * * *" in violation of her constitutional rights.
Defendant William J. Barton is merely identified as the Police Chief, whose

duty it was to supervise the members of the police force. The fourth police
defendant, Thomas Lennon, allegedly participated in the questioning with
Fleming and Jansen. Once again, as the incidents complained of occurred on
March 22, 1962, the Statute of Limitations bars recovery.
17

(c) F. W. Woolworth Company and Its Employees. The sole charge against
Woolworth and its employees is that an unknown employee, named as Jane
Doe, on orders of the police officers, searched the minor on the day of her
apprehension. Besides being barred by the Statute of Limitations, the complaint
reveals that Jane Doe did nothing more than obey a police order as a private
citizen and in no way acted under color of State law. Finally, if jurisdiction
does not attach under the Civil Rights Statutes hereinbefore referred to, then it
cannot be assumed under 28 U.S.C. 1332 as the complaint does not allege
diversity of citizenship between plaintiffs and any of the named defendants.

18

(d) The Judges and Employees of the Pennsylvania Supreme and Superior
Courts and the Delaware County Court. The accusations in this regard are so
patently frivolous and baseless as to warrant little comment. Suffice it to say
that the judiciary and Court employees executing judicial orders are immune
from liability for acts committed within their judicial discretion. Pierson v. Ray,
386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), Bauers v. Heisel, 361
F.2d 581 (3d Cir. 1966). All of the acts complained of were exercised in the
performance of the judicial function.

19

(e) The Wallingford Home and Its Employees. The minor, by order of the
Delaware County Court, was committed to Wallingford Home on July 13,
1962, and was released January 25, 1963. The complaint alleges the minor was
held in "involuntary servitude" by named employees, "was forced * * * to
perform menial tasks, in violation of the 13th Amendment" and "was subjected
to physical abuse and cruelty" which amounted to cruel and unusual
punishment under the Eighth Amendment to the Constitution.

20

A threshold issue in Civil Rights actions is whether the alleged tortfeasor acted
"under color of any statute, ordinance, regulation, custom or usage, of any State
or Territory".6 For action to be taken under color of State law requires "
(m)isuse of power, possessed by virtue of state law and made possible only
because the wrongdoer is clothed with the authority of state law * * *." United
States v. Classic, 313 U.S. 299 at 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368
(1940); Accord Monroe v. Pape, 365 U.S. 167 at 184, 81 S.Ct. 473, 5 L.Ed.2d
492 (1961). Thus the District Judge's observation that the Wallingford Home
and its employees did not act under color of State law in the sense that term is
used in the Civil Rights Act was well taken. The Wallingford Home was a

private orphanage, and the defendant employees were private citizens employed
on the staff. In all their relations with the minor plaintiff, the institution and the
employees acted in their private capacities as employees of a private institution.
It is not alleged that the defendants became agents or officers of the State. The
employees received no salary or fee from the State, nor were their actions
controlled by the State. Under the terms of Court Order plaintiffs Ludwig
Henig and Geneva M. Henig were required to pay for the maintenance and care
of their child. It follows that the actions of these defendants did not comprise a
misuse of power derived from an actual vesting of authority by the State and
that the defendants did not act under color of State law in the sense used in the
Civil Rights Act.
21

The District Judge was equally accurate in concluding, on the basis of the facts
alleged in the complaint, that the claim the child was placed in involuntary
servitude and subjected to cruel and unusual punishment was patently
frivolous.

22

The Order dismissing the action is affirmed.

Notes:
1

Jurisdiction of this Court is invoked pursuant to 28 U.S.C.A. 1331, 1343; 42

U.S.C.A. 1983-1985; and under Amendments 5, 6, 8, 9, 13 and 14 of the
United States Constitution

Henig v. Odorioso, et al., 256 F.Supp. 277 (1966)

On January 25, 1963, Judge Toal discharged the minor from the care of the
Wallingford Home and returned her to her parents' custody

Act of June 2, 1933, P.L. 1433, 11 P.S. 243 et seq

In Pennsylvania, 12 P.S. 51, which requires that actions "for malicious

prosecution or for false arrest" be brought within one year from the accrual of
the cause of action, is applied to actions for false imprisonment where a false
arrest preceded the incarceration. The rationale behind applying this Statute to
such situations is that the false arrest is viewed as being the source of the tort.
Rhoads v. Reading Co., 83 Pa.Dist. & Co.R. 168 (1953). See Funk v. Cable,
251 F.Supp. 598 at 600 (M.D.Pa.1966) (dictum); 2 Standard Pennsylvania
Practice, Limitation of Actions 73 at page 153 (1956). Prior to enactment of
this Statute, 12 P.S. 34, requiring that actions for injuries wrongfully done to

the person which do not result in death be brought within two years from
accrual of the action, was applied to all false imprisonment causes. JonesBurget v. Borough of Dormont, 14 F.2d 954 (3d Cir. 1926). Presumably this
Statute still applies to false imprisonment actions where no arrest occurred. See
16 P.L.E. 5, p. 298
6

Section 1983 of the Civil Rights Act. Section 1985 does not enunciate this
standard, but the majority of Courts read the color of law requirement into this
section on the premise Congress did not intend to assume within the federal
sphere individual tort actions against other individuals. Kamsler v. M.F.I.
Corp., 359 F.2d 752 (7th Cir. 1966); Hoffman v. Halden, 268 F.2d 280 & n. 8
(9th Cir. 1959); Williams v. Yellow Cab Co. of Pittsburgh, 200 F.2d 302 (3d
Cir. 1953), cert. den. Dargan v. Yellow Cab Co., 346 U.S. 840, 74 S.Ct. 52, 98
L.Ed. 361 (1953); Love v. Chandler, 124 F.2d 785 (8th Cir. 1942)