375 F.2d 737 - Jones v. Bombeck — 375 F.2d 737

How this case has been cited

Cited by 56 later decisions — most recently September 2010 · most notably Ammlung v. City of Chester (1974), Duncan v. Nelson (1972)

26 federal appellate · 2 district ·

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

¶1 *738Donald L. Jones, pro se.

¶2E. V. Buckley, Pittsburgh, Pa. (Mercer & Buckley, Pittsburgh, on the brief), for appellees.

¶3Before STALEY, Chief Judge, and KALODNER and SMITH, Circuit Judges.

¶4OPINION OF THE COURT

¶5PER CURIAM.

¶6This is an appeal from the dismissal of a civil rights action commenced under 42 U.S.C. §§ 1983, 1985 and 28 U.S.C. § 1343. The complaint alleges that the defendants, acting in conspiracy among themselves and with others, induced the plaintiff to commit and participated with him in the commission of a burglary for which he was apprehended and is now serving a sentence.

¶7The district court granted defendants’ motion to dismiss the complaint on the grounds that it failed to state a cause of action and that, on its face, it was barred by the statute of limitations. We fully agree with the district court’s disposition.

¶8 To state a cause of action under the Civil Rights Act it is necessary that there be an allegation that plaintiff was denied or that there was a conspiracy to deny him a constitutional right, privilege or immunity. See Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Here, at best, all that appellant has alleged is entrapment. While entrapment may be a proper defense in a criminal action, a police officer’s participation in such activity does not constitute a constitutional violation.

¶9We also approve the district court’s alternative ground for dismissal. In the absence of a congressionally-enacted time limitation for the bringing of such actions, the state statute of limitations should be applied. O’Sullivan v. Felix, 233 U.S. 318, 34 S.Ct. 596, 58 L.Ed 980 (1914); Gaito v. Strauss, 249 F.Supp; 923 (W.D.Pa.), aff’d per curiam, 368 F.2d 787 (C.A.3, 1966), cert. denied, 386 U.S. 977, 87 S.Ct. 1173, 18 L.Ed.2d 139 (March 20, 1967); Conard v. Stitzel, 225 F.Supp. 244 (E.D.Pa.1963). Assuming that the Pennsylvania two year statute of limitations applied,1 12 Purdon’s Pa.Stat.Ann. § 34, it is clear that this action was filed well beyond the permissible *739date. We can discern no reason why the statute should be tolled because the appellant was incarcerated.

¶10The judgment of the district court will be affirmed.