TANYA NICOLE KACH a/k/a Nikki Diane Allen v. Thomas Hose, individually

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-3921
TANYA NICOLE KACH a/k/a Nikki Diane Allen
v.
THOMAS HOSE, individually and on behalf of both
ST. MORITZ SECURITY SERVICES, INC.
and McKEESPORT SCHOOL DISTRICT;
*ST. MORITZ SECURITY SERVICES, INC.,
a Pennsylvania Corporation, and on behalf
of the McKEESPORT SCHOOL DISTRICT;
McKEESPORT SCHOOL DISTRICT;
McKEESPORT SCHOOL BOARD;
DR. ROBERT WEINFURTNER, Superintendent;
THE CITY OF MCKEESPORT; ELEANOR HOSE
and HOWARD HOSE, as Husband and Wife;
E. MICHAEL ELIAS, Juvenile Lieutenant,
McKEESPORT POLICE; DAN PACELLA,
Vice-Principal McKEESPORT SCHOOL DISTRICT;
ANDREA ABRAMS, Acting-Principal McKEESPORT
SCHOOL DISTRICT; TOM CARTER,
Both Chief, McKEESPORT POLICE, and
McKEESPORT SCHOOL BOARD MEMBER;
JUDY SOKOL and DEBBIE BURNETTE

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Tanya Nicole Kach,
Appellant
(*Dismissed per Court Order dated 8/18/09)
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 06-cv-01216)
District Judge: Honorable Gary L. Lancaster
Argued October 29, 2009
Before: SMITH, FISHER and NYGAARD, Circuit Judges.
(Filed: December 23, 2009 )
Lawrence H. Fisher (Argued)
Cohen & Willwerth
301 Grant Street
Suite 4300
Pittsburgh, PA 15219
Attorney for Appellant

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P. Brennan Hart
Jeanette H. Ho (Argued)
Pietragallo, Gordon, Alfano, Bosick & Raspanti
301 Grant Street
One Oxford Centre, 38th Floor
Pittsburgh, PA 15219
Attorneys for City of McKeesport,
E. Michael Elias and Tom Carter
David S. Bloom
Ronald R. Lucas, Jr. (Argued)
Maiello, Brungo & Maiello
3301 McCrady Road
One Churchill Park
Pittsburgh, PA 15235
John F. Cambest
Dodaro, Kennedy & Cambest
1001 Ardmore Boulevard
Suite 100
Pittsburgh, PA 15221
Attorneys for Tom Carter, Andrea Abrams,
Debbie Burnette, McKeesport School Board,
McKeesport School District, Dan Pacella
and Robert Weinfurtner
OPINION OF THE COURT

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Section 1983 provides in part:1
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any
State or Territory or the 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.
4
FISHER, Circuit Judge.
This case arises from a highly unusual and extremely
disturbing set of circumstances. In September 1995, Tanya
Nicole Kach was a fourteen-year-old student when she
befriended, and later became intimate with, Thomas Hose, a
security guard at her middle school. Several months later, Kach
ran away from home and spent the next approximately ten years
living clandestinely with Hose. In March 2006, when in her
twenties, Kach disclosed her true identity to a friend and was
removed by law enforcement authorities from Hose’s house.
Thereafter, she brought this lawsuit against Hose, several other
individuals as well as school and law enforcement officials,
asserting various 42 U.S.C. § 1983 and state-law claims. The1
District Court dismissed all of Kach’s claims at summary

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Unless otherwise indicated, any reference to Kach means2
the plaintiff-appellant in this case.
Because this is an appeal from the grant of summary3
judgment, we view the evidence in a light most favorable to
Kach, the nonmoving party. See Fagan v. City of Vineland, 22
F.3d 1296, 1299 (3d Cir. 1994) (en banc).
5
judgment. The Court determined that most of Kach’s § 1983
claims and certain state-law claims were time-barred and that
Hose had not acted under color of state law for § 1983 purposes.
Having disposed of Kach’s federal claims, the District Court
declined to exercise supplemental jurisdiction over her
remaining state-law claims. Kach now appeals. We will affirm
the District Court’s ruling in its entirety.
I.
A.
Kach was born on October 14, 1981 to Jerald and Sherri2
Kach. She spent the first several years of her life in3
Monongahela, Pennsylvania. In April 1995, Jerald Kach met Jo-
Ann McGuire. Several months later, following Jerald and Sherri
Kach’s separation, Jerald and Tanya Kach moved in with
McGuire and her son at their home in McKeesport,
Pennsylvania.
In September 1995, Kach began attending Cornell
Middle School in McKeesport. A few weeks after starting

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school, Kach met Hose, a security guard working at Cornell and
employed by St. Moritz Security Services, Inc. St. Moritz, a
private security firm under contract with the school, had hired
Hose in August 1994 and shortly thereafter assigned him to
Cornell, where he was responsible for monitoring the premises
and breaking up fights among students. After their initial
encounter, Kach developed a crush on Hose and began writing
him letters expressing her feelings for him. As the school year
progressed, the relationship between Kach and Hose grew
intimate. Hose sometimes removed Kach from class, ostensibly
for disciplinary reasons but in reality for the purpose of spending
time with her alone. Hose also gave Kach gifts in the form of
money and jewelry. The two often walked the halls of Cornell
together and occasionally met at a prearranged location
underneath a stairwell. At Hose’s invitation, Kach spent
Superbowl Sunday in 1996 at Hose’s house in McKeesport,
where Hose lived with his parents, Eleanor and Howard, and his
son. Hose’s family was not at home during Kach’s visit. Kach
ended up spending the night and “making out” with Hose. Hose
told Kach on a number of occasions that he understood that her
home life was unstable and that he could take better care of her
than her parents could.
On February 9, 1996, Kach packed some possessions into
a book bag. The next day, she left home without telling anyone
and went to Hose’s house with the belief that her life would be
better with Hose. Four days after Kach’s departure and with no
knowledge of her whereabouts, Jerald Kach reported his
daughter missing to the McKeesport Police Department. A
missing persons report was issued and an officer was dispatched
to Hose’s home during the course of the ensuing investigation.

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The door to Hose’s bedroom could be locked only from4
the inside; it did not have an outside lock.
Although Hose’s parents lived in the same house as5
Kach for the entirety of her time there, they were unaware that
Kach was living there for the first approximately nine years.
7
During the officer’s visit, Kach stayed in hiding and her
presence went undiscovered.
Kach spent the next approximately ten years living with
Hose, unbeknownst at first to everyone but the two of them. For
the first several years, Kach remained in Hose’s bedroom for
long stretches of time, locking the door from the inside during
Hose’s absences and opening it only on Hose’s return.4
Beginning in 2000, with Hose’s assent, Kach occasionally left
the house while Hose’s parents were not at home but always
returned before they did. Kach sometimes took the bus to go5
shopping or ventured around the neighborhood on foot.
Although Kach at various times had misgivings about her living
conditions, she remained with Hose. Her occasional complaints
to Hose about wanting to leave were met with threats and “guilt
trips.”
In June 2005, Hose introduced Kach to his parents.
Thereafter, Kach’s unaccompanied outings became increasingly
common. During the course of her excursions, Kach met Joseph
Sparico, the owner of a local convenience store to whom she
introduced herself as Nikki Diane Allen. She made frequent
visits to the convenience store, in time befriending Sparico and

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The complaint in fact names the “McKeesport School6
District.” The proper name is McKeesport Area School District.
8
his family. In March 2006, Kach informed Sparico that she was
in fact Tanya Kach and that she had been living with Hose for
ten years. Law enforcement authorities were notified, ultimately
leading to Kach’s removal from the house and Hose’s arrest and
conviction for various criminal offenses arising out of his
relationship with Kach.
B.
In September 2006, approximately six months after her
identity and whereabouts came to light, Kach initiated this
lawsuit in the United States District Court for the Western
District of Pennsylvania, asserting § 1983 and state-law claims
arising out of her association with Hose. She named as
defendants Hose and his parents; St. Moritz; the McKeesport
Area School District and its superintendent, Dr. Robert6
Weinfurtner; the McKeesport School Board; Dan Pacella, a
Cornell administrative assistant; Andrea Abrams, Cornell’s
acting principal; the City of McKeesport; E. Michael Elias, a
lieutenant with the McKeesport Police Department Juvenile
Bureau; Thomas Carter, the McKeesport Police Department
chief of police and a member of the McKeesport School Board;
and Judy Sokol, one of Hose’s friends who was alleged to have
aided Hose in concealing Kach’s identity. The Clerk of the
District Court entered default against Eleanor and Howard Hose
as well as Sokol after all three failed to plead or otherwise
defend within the time required by law. The District Court

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The District Court dismissed Count One of the original7
complaint, which asserted a claim under the Racketeer
Influenced and Corrupt Organizations Act, 18 U.S.C.
§§ 1962(c), 1964(c), against the City of McKeesport, Carter and
Elias. That ruling is not at issue in this appeal. In her amended
complaint, Kach kept the already-dismissed Count One and did
not reorder the other counts. In other words, the first count in
the amended complaint is labeled Count Two.
9
thereafter denied Kach’s motion for the entry of default
judgment against those defendants.
In July 2007, Kach filed an amended complaint against
the same defendants listed above plus Debbie Burnett, a Cornell
guidance counselor. In Count Two of the amended complaint,7
Kach asserted a § 1983 claim based on alleged civil rights
violations against the City of McKeesport as well as Carter and
Elias. In Count Three, Kach asserted a § 1983 claim based on
alleged civil rights violations against Hose, St. Moritz, the
McKeesport Area School District, the McKeesport School
Board, Carter, Pacella, Abrams, and Burnett. Count Four
asserted a negligence claim against Eleanor and Howard Hose
as well as Sokol. In Count Five, Kach asserted a negligence
claim against St. Moritz. Counts Six and Seven, respectively,
asserted an assault claim and a battery claim against Hose. After
Kach filed her amended complaint, the Clerk of the District
Court entered Hose’s default after he, too, failed to plead or
otherwise defend within the time required by law.

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10
Following discovery, the defendants who had appeared
in this case separately moved for summary judgment in three
groups. The first group was made up of the City of
McKeesport; Elias; and Carter, in his capacity as the chief of
police (collectively, the “McKeesport Defendants”). The second
group consisted of St. Moritz alone. The third group was made
up of the McKeesport Area School District; the McKeesport
School Board; Weinfurtner; Pacella; Abrams; and Carter, in his
capacity as a member of the McKeesport School Board
(collectively, the “School District Defendants”). The defendants
sought summary judgment on a number of different grounds.
After a hearing, the District Court granted the defendants’
respective motions. Kach v. Hose, No. 06-1216, 2008 U.S. Dist.
LEXIS 97592 (W.D. Pa. Sept. 12, 2008). Focusing its analysis
primarily on the defendants’ statute-of-limitations defense, the
District Court held that Kach’s § 1983 claims were time-barred
and rejected Kach’s arguments that her claims did not accrue
until her departure from Hose’s house and that either
Pennsylvania or federal tolling principles rendered her claims
timely. The Court granted summary judgment for Hose based
on its conclusion that Hose had not acted under color of state
law, an essential element of a § 1983 claim. The District Court
also dismissed, on statute-of-limitations grounds, Kach’s
state-law claim against St. Moritz. Finally, the District Court
declined to exercise supplemental jurisdiction over Kach’s
remaining state-law claims against the defaulting defendants.
This timely appeal followed. Kach contends that the
District Court erred in holding that her claims were time-barred;
granting summary judgment for Hose on the ground that he was

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Kach’s appeal has been dismissed with prejudice as to8
St. Moritz.
The District Court had jurisdiction under 28 U.S.C.9
§ 1331 and 28 U.S.C. § 1367(a). We have jurisdiction under 28
U.S.C. § 1291.
11
not acting under color of law; and declining to exercise
supplemental jurisdiction over her state-law claims.8
II.
This Court exercises plenary review over both the District
Court’s grant of summary judgment and its conclusion that Kach
failed to assert her claims within the applicable limitations
period. See Alexander v. Nat’l Fire Ins. of Hartford, 454 F.3d9
214, 219 n.4 (3d Cir. 2006); KingVision Pay-Per-View, Corp. v.
898 Belmont, Inc., 366 F.3d 217, 220 (3d Cir. 2004). In
reviewing the District Court’s summary judgment ruling, we are
“required to apply the same test the district court should have
utilized initially.” Oritani Sav. & Loan Ass’n v. Fidelity &
Deposit Co. of Md., 989 F.2d 635, 637 (3d Cir. 1993) (quotation
marks and citation omitted). Summary judgment is appropriate
when “the pleadings, the discovery and disclosure materials on
file, and any affidavits show that there is no genuine issue as to
any material fact and that the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(c). In determining whether
such relief is warranted, “[t]he evidence of the nonmovant is to
be believed, and all justifiable inferences are to be drawn in his
favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

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The District Court also dismissed Kach’s negligence10
claim against St. Moritz on statute-of-limitations grounds.
Because this appeal has been dismissed as to St. Moritz, our
review of the District Court’s statute-of-limitations ruling
centers only on Kach’s § 1983 claims.
12
(1986). The inquiry is “whether the evidence presents a
sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter
of law.” Id. at 251-52. We review the District Court’s decision
not to exercise supplemental jurisdiction for abuse of discretion.
See De Asencio v. Tyson Foods, Inc., 342 F.3d 301, 311 (3d Cir.
2003); Figueroa v. Buccaneer Hotel Inc., 188 F.3d 172, 175 (3d
Cir. 1999).
III.
A. Statute of Limitations
The District Court dismissed the lion’s share of Kach’s
§ 1983 claims on statute-of-limitations grounds. Kach mounts10
two distinct challenges to that portion of the District Court’s
ruling. First, she argues that the District Court erred in its
determination of the accrual date of her claims. Second, she
asserts that the District Court incorrectly declined to toll the
statute of limitations governing her claims under either
Pennsylvania or federal law.

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1. Accrual
The length of the statute of limitations for a § 1983 claim
is governed by the personal injury tort law of the state where the
cause of action arose. Wallace v. Kato, 549 U.S. 384, 387
(2007). The statute of limitations for a § 1983 claim arising in
Pennsylvania is two years. 42 Pa. Cons. Stat. § 5524(2); see
also Kost v. Kozakiewicz, 1 F.3d 176, 189-90 (3d Cir. 1993).
Federal law governs a cause of action’s accrual date. Genty v.
Resolution Trust Corp., 937 F.2d 899, 919 (3d Cir. 1991).
Under federal law, a cause of action accrues, and the statute of
limitations begins to run, “when the plaintiff knew or should
have known of the injury upon which its action is based.”
Sameric Corp. v. City of Philadelphia, 142 F.3d 582, 599 (3d
Cir. 1998) (citation omitted); see also Montgomery v. De
Simone, 159 F.3d 120, 126 (3d Cir. 1998). The determination
of the time at which a claim accrues is an objective inquiry; we
ask not what the plaintiff actually knew but what a reasonable
person should have known. Barren v. United States, 839 F.2d
987, 990 (3d Cir. 1988). As a general matter, a cause of action
accrues at the time of the last event necessary to complete the
tort, usually at the time the plaintiff suffers an injury. See
United States v. Kubrick, 444 U.S. 111, 120 (1979). “The cause
of action accrues even though the full extent of the injury is not
then known or predictable. Were it otherwise, the statute would
begin to run only after a plaintiff became satisfied that he had
been harmed enough, placing the supposed statute of repose in
the sole hands of the party seeking relief.” Wallace, 549 U.S. at
391 (internal quotation marks and citations omitted).

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Kach essentially alleges that the School District
Defendants knew or should have known of her inappropriate
relationship with Hose while she was a student at Cornell and
did nothing to prevent that relationship from developing. She
also alleges that the McKeesport Defendants did not adequately
investigate her disappearance and secure her release from
Hose’s house. At bottom, the injuries Kach claims to have
suffered as a result of those alleged failures are sexual abuse and
a deprivation of her liberty, both at Hose’s hands. Kach does
not dispute that a reasonable person in her position would have
known, or would have had reason to know, of both injuries in
1996, and the parties do not dispute that, under Pennsylvania
law, Kach’s claims were tolled until she attained the age of
majority in October 1999. Therefore, Kach’s § 1983 claims
ordinarily would have expired two years after her eighteenth
birthday in October 2001. Kach argues that her purported lack
of guardianship as well as her stunted cognitive development
during her time with Hose should have been factored into the
accrual analysis. In her view, her claims did not accrue until
March 2006, when she exposed her true identity to Sparico and
subsequently was removed from Hose. To substantiate that
position, Kach relies almost exclusively on this Court’s decision
in Miller v. Philadelphia Geriatric Center, 463 F.3d 266 (3d
Cir. 2006).
In Miller, decedent Henry Miller was born with severe
retardation and functioned on the level of a young child well
into old age. No guardian was ever appointed to represent him
despite his mental condition. When in his sixties, Miller was
placed in a geriatric center, where his condition worsened over
the next couple of years until his death. His sister, Vicki Miller,

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thereafter sued the United States and her brother’s doctors in
state court, and her case was later removed to federal court with
jurisdiction predicated on the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. § 1346. The government moved for
summary judgment, arguing that the suit was time-barred
because Vicki Miller became aware of her brother’s injury on
October 31, 1995, when he was admitted to a hospital for a
disease that caused his muscles to break down, but did not file
suit until September 21, 1999, beyond the FTCA’s two-year
statute of limitations. Vicki Miller countered that her cause of
action accrued on September 24, 1997, the date of her brother’s
death. The district court agreed with the government and
granted its motion for summary judgment.
On appeal, Vicki Miller argued that the district court
erred by charging her, rather than her brother, with knowledge
of his injury for accrual purposes. We agreed. We explained
that although a tort claim ordinarily accrues when the injury
occurs, the Supreme Court’s decision in United States v.
Kubrick “carved out a ‘discovery rule’ exception for FTCA
claims involving medical malpractice.” Miller, 463 F.3d at 271
(citing Kubrick, 444 U.S. at 111). Under that rule, “[s]uch
claims . . . accrue not at the time of injury, but rather when a
plaintiff knows of both the existence and the cause of his
injury.” Id. (citing Kubrick, 444 U.S. at 119-22). While we
acknowledged that Kubrick made no exception to this rule for
the mentally disabled, we also recognized that other circuits had
delineated exceptions in cases where the plaintiff bore no
culpability in failing to assert a timely claim. Id. at 273.

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In deciding whether to apply the rule or the exception to
Miller’s suit, we reviewed our decision in Barren v. United
States, in which we applied the rule rather than the exception.
Barren was a veteran of the Korean War and, after his return to
the United States, was admitted to a veteran’s hospital.
Although he was mentally competent upon his admittance to the
hospital, Barren’s condition deteriorated to the point of total
incompetence as a result of the actions of government doctors.
We held that Kubrick’s objective test governed the timeliness of
Barren’s subsequent FTCA suit against the government because
permitting the mentally disabled to exceed the FTCA’s
limitations period would be “tantamount to ruling that a
plaintiff’s mental infirmity can extend the statute of
limitations[,]” and that “[s]uch extensions have been uniformly
rejected by this and other courts of appeals.” Barren, 839 F.2d
at 992. In so holding, we reiterated the Supreme Court’s
concern in Kubrick that “plaintiffs who were injured by the
government could . . . attempt to take advantage of the
‘exception’ by arguing about when they became incompetent.”
Miller, 463 F.3d at 274. We further held that any delay in
appointing Barren a guardian was irrelevant for
statute-of-limitations purposes, as such a delay “should [not]
work to the detriment of the Government.” Barren, 839 F.2d at
991 n.7.
In Miller, we determined that Kubrick’s objective
standard did not govern the timeliness of Miller’s suit and that
Barren was factually distinguishable. We reasoned that “Barren
addresses only the specific class of plaintiffs who were not only
injured by the government, but were also prevented from
recognizing their injuries by the government’s malfeasance

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. . . .” Miller, 463 F.3d at 274. Noting that Henry Miller’s
incompetence was congenital and thus predated the
government’s conduct, we reasoned that “there can be no
concern that finding Kubrick inapplicable here will encourage
disputes over when [he] was rendered incompetent.” Id. We
contrasted Miller’s case with that of a minor plaintiff,
commenting that Kubrick’s objective standard generally applies
to minors not because they are personally capable of taking
stock of their injuries and asserting their rights, but because they
have parents or guardians who are capable of doing so in their
stead:
That is, we impute to their parents or guardian the
knowledge of their injury. We do this precisely
because a legal minor is not in a position to either
understand her injuries or even to bring a claim if
she wanted to. It follows that, in the rare instance
where a minor did not have either a parent or a
guardian, the Kubrick standard should not be
applied to them because there would be no one to
whom we could impute knowledge and, also
because the minor herself could not have
understood, let alone brought, the claim. Here,
we are essentially dealing with a minor – an
individual who is so severely mentally
incapacitated that his intelligence equates to that
of a four-year-old child. Moreover, this “minor”
lacked an appropriate legal guardian.
Id. at 274-75.

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Describing Miller’s legal position as “unique” and our
holding as “narrow,” id. at 275, we declined to apply Kubrick
and instead carved out “a narrow equitable exception to
Kubrick’s reasonable person standard for mentally incapacitated
persons who, for whatever reason, do not have a legally
appointed guardian to act in their stead.” Id. (citations omitted).
Accordingly, we vacated the grant of summary judgment for the
defendants on Miller’s FTCA claim.
To establish that she comes within the exception we
carved out in Miller, Kach advances two main arguments. First,
she asserts that during her time at Hose’s house she “was
completely deprived of a parent or guardian.” (Appellant’s Br.
27.) Although she does not say so explicitly, Kach evidently
urges us not to impute knowledge of her injuries to her parents
on the ground that they were either delinquent as guardians or
simply did not know of her injuries because they were unaware
of the conditions that occasioned her disappearance. That
argument is unavailing. Kach has adduced no evidence
whatever to show that she did not actually have a guardian
before her eighteenth birthday, and the record undermines any
allegation to that effect. Indeed, the record suggests that at least
one, if not both, of Kach’s parents were her legal guardians until
she reached the age of majority. Kach does not suggest
otherwise. We must similarly reject Kach’s related argument
that she was effectively denied guardianship because her parents
were unaware of the cause of her disappearance and her
consequent whereabouts. We have explained that a guardian’s
mere lack of diligence in asserting the rights of a minor plaintiff
does not excuse the minor from statute-of-limitations
constraints. See Lake v. Arnold, 232 F.3d 360, 371 (3d Cir.

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Specifically, Bernstein reviewed the amended11
complaint, Kach’s responses to interrogatories propounded by
the defendants, and Kach’s deposition. (App. 225.)
19
2000) (noting that in the “typical” case barring tolling, “where
a third party injures a mentally incompetent person and the
guardian fails to bring the claim in a timely fashion, . . . tolling
would be inappropriate because the guardian had failed to
exercise diligence” (emphasis supplied)). Kach has pointed to
no authority for her apparent position that a minor whose legal
guardian for whatever reason fails to assert the minor’s rights
may avoid a statute of limitations. We believe that Lake
forecloses such a position.
Even if we presumed that Kach in fact was denied
effective guardianship, she lost the benefit of that presumption
once she reached the age of majority in 1999 under
Pennsylvania law. See 23 Pa. Cons. Stat. § 5101(b). Thus, to
come within Miller’s narrow exception, Kach would have to
show that she was mentally incompetent and that her mental
incompetence predated the government conduct that is alleged
to have caused her injuries. She has failed to make such a
showing. The only evidence on which Kach relies to
demonstrate her mental condition is the declaration of Dr.
Lawson Bernstein, a psychiatrist who did not examine Kach in
person but reviewed certain materials produced in the course of
this litigation and forwarded to him by Kach’s lawyer. In his11
declaration, Bernstein opines, in relevant part, as follows:

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1. Ms. Kach was already a psychologically
troubled and abused youth prior to the
events in question, and therefore
particularly at risk for further abuse and
control by any adult bent on subjugating
her.
2. Ms. Kach was sexually abused/tortured
and defacto [sic] abducted by the
defendant at the age of 14.
3. Ms. Kach was then continuously subjected
to this highly abnormal abusive
environment in which her limited
adolescent capacity for judgment and
associated free will was subjugated to the
undue influence of her adult captor.
. . . .
5. The highly abnormal and abusive
environment . . . was inimical to any type
of further emotional, cognitive or other
critical developmental maturation in Ms.
Kach from age 14 onward.
. . . .
7. Even after revealing the nature of her
ordeal to another in 2006, Ms. Kach then
returned to the home of her captor rather

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than flee those premises. This is not the
act of an adult capable of free will and/or
normal judgment.
8. Based on the above highly abnormal and
continuously abusive state of affairs, Ms.
Kach was bereft of her cognitive faculties
and associated capacity for normal adult
judgment such that she was unable to fully
appreciate the nature of Mr. Hose’s abuse
of/control over her and to take steps to
actively interdict that control and
associated abuse. (App. 223-24.)
We do not necessarily reject the possibility that Kach’s
psychological development was retarded or even arrested during
her time with Hose. We cannot, however, agree with Kach’s
contention that, “as a matter of law, [she] was incompetent from
the outset as she was a minor at the time of her initial captivity
and never thereafter advanced developmentally.” (Appellant’s
Br. 29 (citation omitted).) Bernstein’s declaration simply does
not support that contention. It neither says explicitly nor even
intimates obliquely that Kach at any time, either before or during
her years at Hose’s house, suffered from incapacity, as we
restrictively understood that term in Miller. See 463 F.3d at 275
(noting that Henry Miller’s “profound mental retardation
prevented him from any awareness of his injury or its cause”
(emphasis supplied)). Indeed, even Kach’s troubled state before
she began living with Hose and her subsequent prolonged
subservience to him is a far cry from the total mental disability
of plaintiffs in other accrual-delay cases. E.g., Washington v.

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United States, 769 F.2d 1436, 1438-39 (9th Cir. 1985) (holding
that a claim accrued when a comatose patient died, not when she
fell into a years-long coma, because the plaintiff was never
aware of her injury or its cause); Clifford by Clifford v. United
States, 738 F.2d 977, 980 (8th Cir. 1984) (holding that the
statute of limitations accrued when the minor’s father was
appointed his guardian and not when the minor became
comatose); Zeidler v. United States, 601 F.2d 527, 529-30 (10th
Cir. 1979) (remanding for a determination whether accrual delay
was proper where the plaintiffs may not have known they had
suffered medical malpractice because they had been
lobotomized); Orlikow v. United States, 682 F. Supp. 77, 84
(D.D.C. 1988) (delaying accrual where the plaintiffs, who had
varying forms of mental disorders, were used as test subjects by
the Central Intelligence Agency); cf. Smith v. United States, 518
F. Supp. 2d 139, 162 (D.D.C. 2007) (declining to delay accrual
despite the plaintiff’s professed “profound global and cognitive
impairment” following her daughter’s death because her
condition was “both less severe and of a much shorter duration”
than cases in which accrual was deemed appropriate (internal
quotation marks omitted)).
The common thread uniting Miller and the other cases
cited above is a reluctance to impose Kubrick’s objective
standard in part because the very government conduct at issue
in those cases resulted in the plaintiffs’ various states of
incompetence. See, e.g., Clifford, 738 F.2d at 980 (“Here we
deal only with that rare situation where the alleged malpractice
itself (and not some preexisting mental condition unconnected
with the government) has prevented the claimant from ever
obtaining that knowledge.”). Kach, in contrast, nowhere tells us

-- 22 of 50 --

23
that her alleged inability to bring suit was solely due to the
government’s malfeasance. Even taking the evidence in a light
most favorable to Kach, her psychological problems, while
certainly substantial, do not constitute the sort of incapacity the
law requires to delay accrual of her claims, in keeping with
Miller and the authority outlined above. Under federal law, it is
plain that Kach’s claims accrued in 1996, and we decline to
stretch Miller’s scope so far beyond the “unique” facts and
“narrow” holding of that case under the circumstances presented
here.
2. Tolling
As we noted earlier, a § 1983 claim is governed by the
statute of limitations that applies to personal injury tort claims
in the state in which such a claim arises. Wallace, 549 U.S. at
387. The general rule is that state tolling principles also govern
§ 1983 claims. See Hardin v. Straub, 490 U.S. 536, 539 (1989);
Island Insteel Sys. v. Waters, 296 F.3d 200, 210 n.4 (3d Cir.
2002). That rule is not absolute. Where state tolling principles
contradict federal law or policy, federal tolling principles may
apply in certain limited circumstances. Lake, 232 F.3d at 370;
see also Bd. of Regents v. Tomanio, 446 U.S. 478, 485 (1980)
(explaining that “federal courts [may] . . . disregard an otherwise
applicable state rule of law only if the state law is inconsistent
with the Constitution and laws of the United States” (internal
quotation marks and citation omitted)); Johnson v. Railway
Express Agency, 421 U.S. 454, 465 (1975) (“[C]onsiderations
of state law may be displaced where their application would be
inconsistent with the federal policy underlying the cause of
action under consideration.”).

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Schwarz was a legal malpractice suit in which the12
plaintiff hired the defendant, an attorney, to represent her in an
insurance suit and ended up having a sexual relationship with
him and becoming pregnant with his child during the
representation. After the plaintiff obtained less money in the
insurance suit than expected, she sued the attorney, who
defended on statute-of-limitations grounds. The plaintiff argued
in opposition that the limitations period was tolled because the
attorney had threatened her and because she was pregnant with
the attorney’s child. The trial court noted that “[t]here is very
little case law in Pennsylvania that guides us on the issue of
tolling of the statute of limitations by duress in legal malpractice
cases[.]” Schwarz, 40 Pa. D. & C. 4th at 370. After reviewing
duress standards as a matter of general contract law, the court,
apparently assuming without deciding that duress was a viable
tolling device, held that the plaintiff had failed to show that her
24
Kach relies on both Pennsylvania and federal tolling law
to support her position that, even assuming her claims accrued
when she turned eighteen, the statute of limitations for those
claims was tolled.
a. Pennsylvania Tolling
Kach argues that any one of three Pennsylvania tolling
principles renders her claims timely. First, she asserts that
Pennsylvania law recognizes duress as a statute-of-limitations
tolling mechanism. To support that assertion, she relies on two
cases: Schwarz v. Frost, 40 Pa. D. & C. 4th 364 (Pa. Com. Pl.
1998), and Cooper v. Fidelity-Philadelphia Trust Co., 201 F.12

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“apprehension of bodily harm was sufficient in severity to
overcome the mind of a person of ordinary firmness.” Id. at
373. Accordingly, the court declined to toll the statute of
limitations period on duress grounds.
In Cooper, the plaintiff was ousted from his position as13
a director of a company and thereafter sued his former attorney,
alleging that the attorney had masterminded his ouster. The
plaintiff opposed the attorney’s subsequent summary judgment
motion on statute-of-limitations grounds, arguing that he was
under a disability “because he was unable to obtain counsel and
because defendants threatened to have [him] committed to a
mental institution[.]” Cooper, 201 F. Supp. at 170. Noting that
“[t]here is little authority for the proposition that ‘duress’ tolls
the running of the statute of limitations,” id., the district court
reviewed general duress principles, as articulated in one case
from a California intermediate appellate court and another from
the Supreme Court of Washington. Applying those principles,
the district court concluded that “even assuming that some or all
of the defendants threatened to attempt to have the plaintiff
committed to a mental institution, such threats would not
constitute ‘duress’ so as to toll the running of the statute of
limitations.” Id. at 171.
25
Supp. 168 (E.D. Pa. 1962). Kach’s reliance on those cases is13
misplaced. Neither case actually says that Pennsylvania law
permits a duress defense to a statute-of-limitations challenge,
and in neither case did the court actually conclude that the

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Of course, neither Cooper nor Schwarz is binding on14
this Court. It bears noting as well that Cooper is a district court
case dating back almost half a century while Schwarz is a state
trial court opinion that has never been cited in any subsequent
published decision.
Other district courts in this circuit have made similar15
observations. See Leatherbury v. City of Philadelphia ex rel.
City of Philadelphia Police Dep’t, No. 96-3377, 1998 U.S. Dist.
LEXIS 1216, at *7 (E.D. Pa. Feb. 3, 1998) (“There are no
reported cases from which one could fairly conclude that the
Pennsylvania Supreme Court would recognize tolling by
duress[.]”); Williams v. Baird, No. 97-1987, 1997 U.S. Dist.
LEXIS 11250, at *6 & n.3 (E.D. Pa. July 22, 1997) (noting that
“[t]here is little authority for the proposition that duress tolls the
running of the statute of limitations” but applying a duress
analysis anyway (quotation marks and citation omitted)).
26
duress alleged warranted tolling under the circumstances. In14
short, neither Schwarz nor Cooper persuasively indicates that
duress may toll the statute of limitations under Pennsylvania
law. Our own review of Pennsylvania law on this point leads us
to the same conclusion the District Court drew: neither the
Supreme Court of Pennsylvania nor either of Pennsylvania’s
intermediate appellate courts has definitively, or even
circumspectly, addressed whether duress may toll the statute of
limitations. Without so much as an intimation from the15
Pennsylvania courts that duress is a cognizable tolling device
under Pennsylvania law, we decline Kach’s invitation to
manufacture such a device on our own initiative.

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27
Second, as an alternative to her duress approach, Kach
urges the application of what she refers to in her brief as the
Pennsylvania discovery rule. Such a rule exists under
Pennsylvania law, as discussed more thoroughly below, but
Kach does not explore it in her brief. Instead, she follows up
her reference to that rule with a discussion of Pennsylvania’s
infancy tolling provision, which provides:
If an individual entitled to bring a civil action is
an unemancipated minor at the time the cause of
action accrues, the period of minority shall not be
deemed a portion of the time period within which
the action must be commenced. Such person shall
have the same time for commencing an action
after attaining majority as is allowed to others by
the provisions of this subchapter.
42 Pa. Cons. Stat. § 5533(b)(1)(i).
Kach reached the age of majority under Pennsylvania law
on October 14, 1999 and thus had until two years after that date
to file her suit. Kach does not dispute that she failed to do so,
but points to a 2002 amendment to the above provision in an
effort to excuse her untimeliness. The amendment states as
follows:
If an individual entitled to bring a civil action
arising from childhood sexual abuse is under 18
years of age at the time the cause of action
accrues, the individual shall have a period of 12
years after attaining 18 years of age in which to

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To avoid the amendment’s non-retroactivity, Kach16
advances an argument that is difficult to grasp. She contends
that she first realized that her sexual relationship with Hose was
improper in 2000, when Hose contacted an attorney to inquire
about the possibility of marriage. (Appellant’s Br. 49-50 (citing
App. 616).) According to Kach, she mistakenly believed that
her eighteenth birthday was in October 2000, and thus asserts
that her claims did not accrue under Pennsylvania law until that
28
commence an action for damages regardless of
whether the individual files a criminal complaint
regarding the childhood sexual abuse.
42 Pa. Cons. Stat. § 5533(b)(2)(i).
The act adding the amendment provides that the
amendment “shall not be applied to revive an action which has
been barred by an existing statute of limitations on the effective
date of this act.” Act of June 28, 2002, P.L. 518, No. 86, § 3.
The act’s effective date was in August 2002. Id. § 4. Because
Kach’s claims were already time-barred by that date, they are
statutorily barred from revival. Cf. Baselice v. Franciscan
Friars Assumption BVM Province, 879 A.2d 270, 274 n.1 (Pa.
Super. Ct. 2005) (finding Pennsylvania’s infancy tolling statute
inapplicable because “appellant brought suit beyond even the
extended statute of limitations period after reaching the age of
majority[] and . . . § 5533(b)(2), which tolls the statute of
limitations for victims of childhood sexual abuse for twelve
years after the age of majority, is not applicable either, as the
statute is not retroactive”).16

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time. Because the amendment’s effective date was in August
2002, Kach contends that her claims are timely. That contention
is misguided in more ways than one. First, the accrual date of
a federal cause of action, as stated earlier, is calculated under
federal law, not state law. Second, Kach’s eighteenth birthday
undisputedly was in 1999. That Kach was under the erroneous
impression that her birthday was in 2000 or at any other time is
irrelevant, as the plain language of the Pennsylvania statute
governing the age of majority establishes that an individual’s
age is a matter of objective fact, not the individual’s subjective
belief. See 23 Pa. Cons. Stat. § 5101(b) (“[A]n individual 18
years of age and older shall be deemed an adult[.]” (emphasis
supplied)).
29
Third, to the extent Kach relies on Pennsylvania’s
discovery rule, we are likewise unpersuaded. Until recently,
“the circumstances under which [Pennsylvania’s discovery rule]
[could] be invoked depend[ed] on the nature of the injury rather
than any specific characteristics unique to the plaintiff that
might otherwise prevent her from recognizing her injury as a
cause of action; such unique characteristics include[d] one’s
mental state.” Lake, 232 F.3d at 367 (citing Dalrymple v.
Brown, 701 A.2d 164 (Pa. 1997) and Molineux v. Reed, 532
A.2d 792 (Pa. 1987)). In Miller v. Philadelphia Geriatric
Center, we interpreted the Supreme Court of Pennsylvania’s
decision in Fine v. Checcio, 870 A.2d 850 (Pa. 2005), as
creating a modicum of maneuvering room for a plaintiff
claiming the benefit of the discovery rule on account of her
particular circumstances: “While reasonable diligence [under
Pennsylvania’s discovery rule] is an objective test, it is

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Such flexibility notwithstanding, it is firmly established17
that the test governing the Pennsylvania discovery rule is an
objective one. See Wilson v. El-Daief, 964 A.2d 354, 366 (Pa.
2009); Fine, 870 A.2d at 858; Dalrymple, 701 A.2d at 167.
30
sufficiently flexible to take into account the differences between
persons and their capacity to meet certain situations and the
circumstances confronting them at the time in question.” Miller,
463 F.3d at 276 (alteration, internal quotation marks and citation
omitted). Applying that test in Miller, we held that Vicki17
Miller’s state-law wrongful death claim should have been tolled
because Henry Miller’s mental age, which was that of a
four-year-old, was “a ‘difference between persons’ that must be
taken into account under Fine . . . to determine whether [he]
knew, or, more accurately, was even capable of knowing, that he
was injured and the cause of his injury. Id. at 276. Accordingly,
we held that what Henry Miller knew and when he knew it
presented a genuine question of material fact, and therefore
vacated the District Court’s grant of summary judgment for the
defendants.
In this case, Kach’s recourse to Pennsylvania’s discovery
rule is unavailing, as she failed to invoke that rule in her
opening brief. See F.D.I.C. v. Deglau, 207 F.3d 153, 169 (3d
Cir. 2000). To the extent Kach merely states the name of the
rule without putting any flesh on its bones, she is still out of
luck, for it is well settled that “a passing reference to an issue
will not suffice to bring that issue before this court.” Laborers’
Int’l Union of North Am., AFL-CIO v. Foster Wheeler Corp., 26

-- 30 of 50 --

31
F.3d 375, 398 (3d Cir. 1994) (ellipsis, quotation marks and
citations omitted).
Even assuming no waiver, Kach fares no better. The
Supreme Court of Pennsylvania has taught that while “the
determination concerning the plaintiff’s awareness of the injury
and its cause is fact intensive, . . . courts may resolve the matter
at the summary judgment stage where reasonable minds could
not differ on the subject.” Wilson v. El-Daief, 964 A.2d 354,
362 (Pa. 2009) (emphasis supplied and citations omitted). To
invoke the rule, a plaintiff must exercise reasonable diligence in
discovering his injury. Id. at 363. The burden is on the plaintiff
to show reasonable diligence. Id. at 362. To meet that burden,
“a plaintiff is required to establish that he exhibited those
qualities of attention, knowledge, intelligence and judgment
which society requires of its members for the protection of their
own interests and the interests of others.” Id. at 363 n.6
(internal quotation marks and citation omitted). The record in
this case leaves us with the firm conviction that Kach has fallen
far short of the mark. Kach deliberately concealed her
whereabouts from her parents and law enforcement officers on
a number of occasions for the better part of a decade.
Furthermore, she made no attempt whatever during her many
unaccompanied outings from Hose’s house over a period of
years to alert anyone to her identity or living conditions until
March 2006. Neither before the District Court nor before this
Court has Kach presented any evidence to demonstrate that she
undertook to ascertain the existence, nature or cause of her
injury. Under these circumstances, no reasonable finder of fact

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We note as well that, to the extent Kach claims that she18
exercised reasonable diligence, she concedes in her brief, and
stated under oath during her deposition, that she knew as early
as 2000 that her relationship with Hose was improper, yet took
no legal action until 2006.
32
could conclude that Kach exercised reasonable diligence.18
Therefore, as a matter of law she cannot avail herself of
Pennsylvania’s discovery rule. See Cochran v. GAF Corp., 666
A.2d 245, 248 (Pa. 1995) (“[W]e have not hesitated to find as a
matter of law that a party has not used reasonable diligence in
ascertaining the cause of an injury thus barring the party from
asserting their claim under the discovery rule.”); see also, e.g.,
Gatling v. Eaton Corp., 807 A.2d 283, 289-90 (Pa. Super. Ct.
2002) (rejecting the application of the discovery rule).
Accordingly, we conclude that Kach’s claims are not
rescued from untimeliness under any Pennsylvania tolling
provision.
b. Federal Tolling
Kach argues that federal tolling principles salvage her
claims even if Pennsylvania law does not. She has not credibly
shown, however, that Pennsylvania law actually conflicts with
federal law or policy, as required for federal tolling to apply. To
the extent Kach seeks to expose a conflict by arguing that
Pennsylvania law upsets the “remedial purposes of § 1983,
namely deterrence and/or compensation,” (Appellant’s Br. 38),
we are unconvinced. Deterrence and compensation surely are

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To the extent Kach contends that Pennsylvania statute-19
of-limitations principles are inconsistent with federal law
because there is no allowance for tolling on mental
incompetence grounds, we are similarly unswayed. As one of
our sister circuits has explained, federal tolling may be
applicable where it is “essential to the vindication of federal
rights.” Heck v. Humphrey, 997 F.2d 355, 358 (7th Cir. 1993)
(Posner, J.) (emphasis supplied). No one could seriously
contend that tolling the statute of limitations in a § 1983 suit on
account of mental incompetence is essential to the vindication
of a federal right. At most, federal law has nothing to say on
33
goals of § 1983. See Wyatt v. Cole, 504 U.S. 158, 161 (1992)
(“The purpose of § 1983 is to deter state actors from using the
badge of their authority to deprive individuals of their federally
guaranteed rights and to provide relief to victims if such
deterrence fails.” (citation omitted)); Hardin, 490 U.S. at 538
(noting “§ 1983’s chief goals of compensation and deterrence”
(footnote omitted)). But we reject what Kach presents as a
categorical proposition that a plaintiff need only invoke those
generic interests to avail herself of federal tolling in the § 1983
context. To hold otherwise would impermissibly allow the
exception (federal tolling) to swallow the rule (state tolling).
See Robertson v. Wegmann, 436 U.S. 584, 593 (1978) (“A state
statute cannot be considered ‘inconsistent’ with federal law
merely because the statute causes the plaintiff to lose the
litigation. If success of the § 1983 action were the only
benchmark, there would be no reason at all to look to state law,
for the appropriate rule would then always be the one favoring
the plaintiff, and its source would be essentially irrelevant.”).19

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this point. Furthermore, even if Pennsylvania law is in fact
inconsistent with federal case law holding that tolling the
limitations period for federal statutes on mental incapacity
grounds is permissible under appropriate circumstances, any
such inconsistency is not relevant in this case. “Although a
state’s tolling provisions cannot be inconsistent with the policies
underlying § 1983, there is no authority for the proposition that
it must be consistent with the federal tolling provisions.”
Rotella v. Pederson, 144 F.3d 892, 897 (5th Cir. 1998) (citation
omitted).
34
Even assuming federal tolling governs Kach’s claims
because Pennsylvania law conflicts with § 1983, we do not find
that any recognized federal tolling principle actually applies in
this case. We have articulated three federal equitable tolling
principles: “(1) where a defendant actively misleads a plaintiff
with respect to her cause of action; (2) where the plaintiff has
been prevented from asserting her claim as a result of other
extraordinary circumstances; or (3) where the plaintiff asserts
her claims in a timely manner but has done so in the wrong
forum.” Lake, 232 F.3d at 370 n.9 (citing Oshiver v. Levin,
Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir.
1994)). Kach relies solely on the “extraordinary circumstances”
tolling principle as applied by this Court in Lake v. Arnold.
In Lake, Elizabeth Lake was born mentally retarded and
was sterilized years later by doctors at the direction of her father
and step-mother. She later learned that she was sterile after
consulting a doctor about the possibility of bearing a child.
Thereafter, she sued her father and step-mother as well as the

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35
hospital and doctors involved in her surgery under 42 U.S.C.
§§ 1983 and 1985(3) and state law. The district court dismissed
Elizabeth’s claims as time-barred. On appeal, we agreed that
Elizabeth’s state-law claims were time-barred under
Pennsylvania law. We disagreed, however, with the district
court’s application of Pennsylvania law to her federal claims.
Recognizing that Ҥ 1983 and 1985(3) are designed to
compensate victims whose federal constitutional or statutory
civil rights have been violated and to prevent future abuses of
state power[,]” id. at 369, we noted that mentally retarded
persons such as Elizabeth are a protected class and that forced
sterilization exemplified the discrimination against such persons
that § 1983 and 1985(3) were designed to remedy. In our view,
“[n]ot allowing any tolling, even in an extraordinary situation
such as this one, puts Pennsylvania’s statute of limitations at
odds with the objectives that § 1983 and § 1985(3) foster by
barring an individual, especially a member of a protected class,
who was deprived, as in this case, of her ability to bring a claim
through her guardians, from seeking compensation and
deterrence.” Id. at 370 (footnote omitted). We therefore
remanded the case to the district court, instructing that
“equitable tolling might be appropriate . . . where a guardian
conspires to deprive a mentally incompetent person of her
constitutional and civil rights[.]” Id. at 370-71. We in no way
mandated such a result, however. See id. at 371. On the
contrary, we highlighted our earlier holding in Barren that
“mental incompetence is not per se a reason to toll the statute of
limitations in federal actions.” Id. (citation omitted).
Elizabeth’s case was unique, we said, because her mental
incompetence at least partially motivated the injury for which
she sought recompense and because “[t]he persons, who should

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36
have protected [her] because of her retardation, instead harmed
her by having her sterilized so that she could not procreate. . . .
In this instance, equitable tolling would promote Congress’s
intent in enacting §§ 1983 and 1985. It would give Elizabeth the
opportunity she was denied when she was sterilized – adequate
representation of her interests – and give her a chance to seek a
remedy for her injury.” Id. at 372.
We agree with the District Court that Lake does not carry
the day for Kach. Lake was sui generis in its application of
federal tolling. While we certainly did, as Kach points out,
permit equitable tolling on account of Elizabeth’s mental
disability, we did so because her mental disability “motivated,
to some degree, the injury that [s]he sought to remedy.” Id. at
371 (citation omitted). The same cannot be said of Kach. It is
unclear what, if any, mental disability Kach is alleged to suffer
from, and even if we found that Kach was suffering from a
disability, there is no evidence whatever that the alleged
constitutional deprivations of which she complains were
motivated, in even a minor way, by such a disability. The
evidence Kach has marshaled on this point is reed-thin,
amounting only to the declaration of a doctor who neither
purports to have examined her nor actually says that Kach is, or
was at any time, mentally incompetent or otherwise unable to
assert her rights. Furthermore, our willingness to apply federal
tolling to Elizabeth’s suit was predicated in no small part by her
membership in a protected class. See id. at 369-70. Kach, in
contrast, concedes that she is not a member of a protected class.
Finally, an additional basis of our holding in Lake was the
possibility that Elizabeth’s guardians may have conspired to
deprive her of her constitutional and civil rights. Id. at 371-72.

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37
That circumstance is not attendant in this case. These several
distinctions place Kach squarely beyond the bounds of Lake’s
exception.
In the absence of a demonstrable conflict between
Pennsylvania tolling principles and § 1983, we are persuaded
that the law does not permit recourse to federal tolling. And
even assuming federal tolling were available to Kach, “[t]he
remedy of equitable tolling is extraordinary, and we extend it
‘only sparingly.’” Santos v. United States, 559 F.3d 189, 197
(3d Cir. 2009) (other citation omitted) (quoting Irwin v. Dep’t of
Veteran Affairs, 498 U.S. 89, 96 (1990)). The circumstances of
Kach’s case certainly may be described as “extraordinary” in the
vernacular sense of that word. See Webster’s 3d New Int’l
Dictionary 807 (1986) (defining “extraordinary” as “going
beyond what is usual, regular, common, or customary”). We
nevertheless conclude that Kach has not met her burden of
showing that this is one of those extraordinary cases warranting
the application of any federal equitable tolling provision. See
Wallace, 549 U.S. at 396; cf. Lyons v. Potter, 521 F.3d 981, 983
(8th Cir. 2008) (“Courts that have allowed equitable tolling
based on mental illness have done so only in exceptional
circumstances, such as where the complainant is
institutionalized or adjudged mentally incompetent.” (citations
omitted)); Lopez v. Citibank, N.A., 808 F.2d 905, 907 (1st Cir.
1987) (Breyer, J.) (“[W]e believe a federal court should assume
that the mental illness was not of a sort that makes it equitable
to toll the statute – at least absent a strong reason for believing
the contrary.” (citation omitted)); see also, e.g., Biester v.
Midwest Health Servs., 77 F.3d 1264, 1267-68 (10th Cir. 1996)
(finding no exceptional circumstances where there was no

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38
allegation that the plaintiff was ever adjudged incompetent or
institutionalized).
Accordingly, we will affirm the District Court’s grant of
summary judgment for the School District Defendants and the
McKeesport Defendants with respect to Kach’s § 1983 claims.
B. Under Color of State Law
Kach maintains that the District Court erred in granting
summary judgment for Hose on her § 1983 claim based on the
Court’s conclusion that Hose was not acting under color of state
law. In its ruling, the District Court reasoned that Hose, having
failed to appear in this case, had waived affirmative defenses,
including the statute of limitations. The District Court reasoned
that it could nevertheless grant summary judgment for Hose
because St. Moritz, his former employer and a defendant in this
case, had argued in its own summary judgment motion that Hose
was not acting under color of state law, and thus that Kach was
both on notice of that argument and had an opportunity to rebut

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As noted earlier, the Clerk of the District Court, in20
accordance with Federal Rule of Civil Procedure 55(a), entered
Hose’s default at Kach’s request in May 2008. On the same day
on which Hose’s default was entered, the defendants in this case
filed their respective summary judgment motions. It is unclear
why Kach, having filed her amended complaint in January 2007,
waited until May 2008 to request the entry of Hose’s default.
For equally unapparent reasons, Kach did not at any time move
for the entry of default judgment against Hose pursuant to
Federal Rule of Civil Procedure 55(b). As noted above, the
District Court determined that it could enter summary judgment
for Hose notwithstanding Hose’s failure to appear. The District
Court reasoned that St. Moritz’s summary judgment motion
adequately put Kach on notice of any arguments that Hose may
have advanced in his own behalf. Neither before the District
Court nor before this Court has Kach ever claimed that she was
caught unawares by the District Court’s decision essentially to
credit Hose with St. Moritz’s arguments at summary judgment.
As a consequence, she has waived this issue.
39
it. The District Court agreed that Kach could not establish that20
Hose was acting under color of law.
The Fourteenth Amendment provides that “no State shall
. . . deprive any person of life, liberty, or property, without due
process of law . . . .” U.S. Const. amend. XIV, § 1. The
Fourteenth Amendment governs only state conduct, not that of
private citizens. Rendell-Baker v. Kohn, 457 U.S. 830, 837-38
(1982). In other words, “[s]ection 1983 subjects to liability
those who deprive persons of federal constitutional or statutory

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40
rights ‘under color of any statute, ordinance, regulation, custom,
or usage’ of a state.” Leshko v. Servis, 423 F.3d 337, 339 (3d
Cir. 2005) (citation omitted). “Under color of law” and “state
action” are interpreted identically under the Fourteenth
Amendment. Id. at 339; see also Mark v. Borough of Hatboro,
51 F.3d 1137, 1141 (3d Cir. 1995). Thus, a plaintiff seeking to
hold an individual liable under § 1983 must establish that she
was deprived of a federal constitutional or statutory right by a
state actor. See Benn v. Universal Health Sys., 371 F.3d 165,
169-70 (3d Cir. 2004).
Although there is no “simple line” between state and
private actors, Brentwood Acad. v. Tenn. Secondary Sch.
Athletic Ass’n, 531 U.S. 288, 295 (2001), we have explained that
“[t]he principal question at stake is 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.” Leshko, 423 F.3d at 339 (internal quotation marks
and citation omitted). To answer that question, we have
outlined three broad tests generated by Supreme Court
jurisprudence to determine whether state action exists:
(1) “whether the private entity has exercised powers that are
traditionally the exclusive prerogative of the state”; (2) “whether
the private party has acted with the help of or in concert with
state officials”; and (3) whether “the [s]tate has so far insinuated
itself into a position of interdependence with the acting party
that it must be recognized as a joint participant in the challenged
activity.” Mark, 51 F.3d at 1142 (other alterations, internal
quotation marks and citations omitted). Under any test, “[t]he
inquiry is fact-specific.” Groman v. Twp. of Manalapan, 47
F.3d 628, 638 (3d Cir. 1995); see also Crissman v. Dover

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41
Downs Entm’t Inc., 289 F.3d 231, 234 (3d Cir. 2002) (en banc)
(noting that “the facts are crucial”). Kach relies on only the first
and third tests.
We disagree that Hose qualifies as a state actor under the
first test. In Rendell-Baker v. Kohn, several private school
employees asserted § 1983 claims against their employer, a
private school, as well as the school’s director, alleging First
Amendment violations after they had been fired. The majority
of the school’s operating budget was funded by the state and the
school educated special-needs students referred to it by public
schools. The Supreme Court held that the school and its director
did not act under color of state law when they fired the plaintiffs
because “[t]he school . . . is not fundamentally different from
many private corporations whose business depends primarily on
contracts to build roads, bridges, dams, ships, or submarines for
the government. Acts of such private contractors do not become
acts of the government by reason of their significant or even
total engagement in performing public contracts.”
Rendell-Baker, 457 U.S. at 840-41. The Court recognized that
“the education of maladjusted high school students is a public
function” and that state law explicitly provided for that function
to be fulfilled, but nevertheless reasoned that the state’s
“legislative policy choice in no way makes these services the
exclusive province of the State.” Id. at 842. The Court also
rejected the notion that state action could be predicated on the
fact that the school was heavily regulated by the state, because
“the decisions to discharge the petitioners were not compelled
or even influenced by any state regulation.” Id. at 841.

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42
We applied the precepts announced in Rendell-Baker in
Black v. Indiana Area School District, 985 F.2d 707 (3d Cir.
1993). In Black, the plaintiffs were schoolchildren who asserted
§ 1983 claims against a private bus company, which was under
contract with the students’ school, and the company’s driver,
alleging that the driver had molested them while driving them to
and from school. Neither the driver nor the company was an
officer or employee of the state. We concluded that the
defendants, like those in Rendell-Baker, while “carrying out a
state program at state expense, . . . were not performing a
function that has been ‘traditionally the exclusive prerogative of
the state’ and there was no state regulation that ‘compelled or
even influenced’ the conduct which is alleged to have violated
plaintiffs’ constitutional rights.” Id. at 710-11. We therefore
held that the conduct of the bus company and its driver could not
“fairly be attributed to the state and that summary judgment in
their favor was required.” Id. at 711.
Here, the only evidence Kach has adduced to show that
Hose was performing an exclusive state function is a
Pennsylvania statute creating an “Office for Safe Schools,”
which is authorized, among other things, “to make targeted
grants to schools to fund programs which address school
violence, including . . . [c]omprehensive, districtwide school
safety and violence prevention plans.” 24 Pa. Cons. Stat.
§ 13-1302-A(c)(8). Kach reads too much into that statute, as
nothing in its plain language suggests that school security is the
exclusive province of the state. Cf. Blum v. Yaretsky, 457 U.S.
991, 1011 (1982) (concluding that nursing homes do not
perform an exclusive state function despite a state constitutional
provision authorizing the legislature to provide care for the

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To the extent Kach argues that Cornell delegated police21
power to St. Moritz and Hose, such an argument is undermined
by the record. It is undisputed that Hose’s duties were restricted
to “patrolling and supervising entrances, hallways, restrooms
and stairwells”; “checking students for hall passes”; “escorting
offenders to the principal’s office”; and “preventing and/or
assisting with any disturbance.” (App. 116 (record citations
omitted).) These undisputed facts establish that Hose was a
security guard with strictly circumscribed duties and
jurisdiction, not one imbued with all the powers of a state police
officer.
Kach’s reliance on West v. Atkins, 487 U.S. 42 (1988), is
likewise misplaced. In that case, the Supreme Court held that a
state-employed doctor providing medical care to prison inmates
was a state actor because the state had an absolute and exclusive
obligation to provide medical care to those whose liberty it had
taken. In the Court’s view, only the state could provide that
function under the circumstances, and thus the doctor
“function[ed] within the state system.” Id. at 55. West is plainly
distinguishable on its facts, as it is well-settled law that public
high school students are not comparable to prisoners or the
involuntarily committed because “parents remain the [students’]
primary caretakers” and because students “may turn to persons
unrelated to the state for help on a daily basis.” D.R. v. Middle
43
needy and because Medicaid statutes did not require the state to
provide such care). Furthermore, as in Rendell-Baker, the fact
that Pennsylvania lawmakers have endowed a state agency with
the power to address school violence surely does not make
school security the exclusive province of the state. Kach has21

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Bucks Area Vocational Tech. Sch., 972 F.2d 1364, 1371-72 (3d
Cir. 1992) (en banc). Furthermore, West suggests that a state is
barred from limiting its responsibility for providing functions
that it is constitutionally required to provide. Here, Cornell had
no constitutional duty to provide security on its premises.
44
presented no other evidence to persuade us that Hose, in his role
as a privately-employed school security guard, was performing
an exclusive government function, and thus she has not met her
heavy burden of showing that he was a state actor under the first
test. Cf. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 158 (1978)
(“While many functions have been traditionally performed by
governments, very few have been ‘exclusively reserved to the
State.’”); Robert S. v. Stetson Sch., Inc., 256 F.3d 159, 165 (3d
Cir. 2001) (noting that the first “test imposes a rigorous standard
that is rarely satisfied” (ellipsis, internal quotation marks and
citation omitted)).
Kach’s resort to the third test likewise bears no fruit.
Under that test, “state action will be found if there is a
sufficiently close nexus between the state and the challenged
action of the regulated entity so that the action may be fairly
treated as that of the State itself.” Boyle v. Governor’s Veterans
Outreach & Assistance Ctr., 925 F.2d 71, 76 (3d Cir. 1991)
(emphasis in original and internal quotation marks and citation
omitted). “[T]he purpose of this requirement is ‘to assure that
constitutional standards are invoked only when it can be said
that the State is responsible for the specific conduct of which the
plaintiff complains.’” Id. (some emphasis in original) (quoting
Blum, 457 U.S. at 1004). “Acts of private contractors do not

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45
become acts of the State simply because they are performing
public contracts. The State will be held responsible for a private
decision only when it has exercised coercive power or has
provided such significant encouragement, either overt or covert,
that the choice must in law be deemed that of the State.” Id.
(emphasis supplied and internal quotation marks and citations
omitted).
Kach asserts that Hose was under the supervision of, and
reported to, Cornell officials while on duty at the school. She
further asserts that Hose sought to be alone with her while at
school. Kach’s attempts to moor these assertions to portions of
the record do her no good, as she has submitted no evidence to
demonstrate that Hose specifically used his authority as a
security guard either to pursue a friendship and intimate
relations with her or to convince her to live with him for ten
years. Nor does the evidence on which Kach relies establish that
her relationship with Hose was begotten either at the explicit
direction or even with the tacit encouragement of Cornell
officials. At most, Kach’s evidence suggests only that some
school officials may have known of Hose’s relationship with
Kach and failed to stop it. That proffer is not good enough to
establish § 1983 liability. See Am. Mfrs. Mutual Ins. Co. v.
Sullivan, 526 U.S. 40, 52 (1999) (“Action taken by private
entities with the mere approval or acquiescence of the State is
not state action.” (emphasis supplied and citations omitted));
Leshko, 423 F.3d at 341; Boyle, 925 F.2d at 77.
Furthermore, Kach ignores that the focus of our inquiry
is not on whether the state exercises control over a putative state
actor as a general matter, but whether the state has exercised

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46
control over the particular conduct that gave rise to the
plaintiff’s alleged constitutional deprivation. E.g., Milburn v.
Anne Arundel County Dep’t of Soc. Servs., 871 F.2d 474, 479
(4th Cir. 1989) (“The State of Maryland was not responsible for
the specific conduct of which the plaintiff complains, that is, the
physical child abuse itself. It exercised no coercive power over
the [abusers]; neither did it encourage them.” (emphasis
supplied)), cited with approval in Leshko, 423 F.3d at 341 n.3;
see also Nat’l Broad. Co. v. Commc’ns Workers of Am., 860
F.2d 1022, 1025 n.4 (11th Cir. 1988) (“[I]f a thread of
commonality is to be drawn from the various forms in which
state action can manifest itself through the conduct of private
parties, it is that attribution is not fair when bottomed solely on
a generalized relation with the state. Rather, private conduct is
fairly attributable only when the state has had some affirmative
role, albeit one of encouragement short of compulsion, in the
particular conduct underlying a claimant’s civil rights
grievance.” (emphasis supplied and quotation marks and citation
omitted)).
On this particular record, no reasonable finder of fact
could conclude that Pennsylvania authorities exercised control
over any element of the particular conduct Kach describes.
Hose was charged with supervising and maintaining a secure
environment for schoolchildren. In clear violation of his
mandate, Hose engaged in an impermissible relationship with
one of the very schoolchildren whose safety he was supposed to
ensure. Kach has not presented evidence to suggest that Hose’s
actions were committed on anyone’s initiative but his own or
with anything other than his own interests in mind. Instead, the
record leaves no room for doubt that Hose “was bent on a

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We recognize that Hose was not employed directly by22
Cornell. Instead, he was an employee of St. Moritz, which had
a contract with Cornell. However, because “labels are not
dispositive in state action cases[,]” Leshko, 423 F.3d at 342
(citing Brentwood Acad., 531 U.S. at 296), the technicalities of
Hose’s employment status are immaterial for purposes of
determining whether Hose acted under color of state law. Cf.
Polk County v. Dodson, 454 U.S. 312 (1981) (rejecting
formalisms in determining whether a public defender was a state
actor and considering instead the defender’s actual function).
47
singularly personal frolic[,]” Martinez v. Colon, 54 F.3d 980,
987 (1st Cir. 1995) (footnote omitted), and thus his conduct is
not cognizable as state action for § 1983 purposes. See Mark,
51 F.3d at 1150 (“It is well settled that an otherwise private tort
is not committed under color of law[.]”); see also Screws v.
United States, 325 U.S. 91, 111 (1945) (“It is clear that under
‘color’ of law means under ‘pretense’ of law. Thus acts of
officers in the ambit of their personal pursuits are plainly
excluded.”); Bonenberger v. Plymouth Twp., 132 F.3d 20, 24
(3d Cir. 1997); Barna v. City of Perth Amboy, 42 F.3d 809, 816
(3d Cir. 1994); accord Roe v. Humke, 128 F.3d 1213, 1216 (8th
Cir. 1997); Van Ort v. Estate of Stanewich, 92 F.3d 831, 838
(9th Cir. 1996); Jojola v. Chavez, 55 F.3d 488, 492-93 (10th Cir.
1995); Pitchell v. Callan, 13 F.3d 545, 548-49 (2d Cir. 1994).
Because Hose was not acting under color of state law when he
committed the acts that form the basis of Kach’s § 1983 claim
against him, we need not decide if Kach’s constitutional rights
were violated. Accordingly, Kach’s § 1983 claim against Hose
fails as a matter of law.22

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We do not foreclose the possibility that, under other
circumstances, a private security guard employed in a public
school could qualify as a state actor.
48
C. Supplemental Jurisdiction
Kach contends that the District Court should have
retained jurisdiction over her state-law claims against the
defaulting defendants: Hose; his parents; and his friend, Judy
Sokol. The District Court determined that those defendants had
waived a statute-of-limitations defense by having failed to
appear and answer. In the District Court’s view, “unless
extraordinary circumstances exist, it is inappropriate for a
district court to proceed with supplemental state law claims
where the underlying federal claim has been dismissed prior to
trial.” Kach, 2008 U.S. Dist. LEXIS 97592, at *27. Concluding
that no such circumstances existed in this case, the District
Court dismissed Kach’s remaining state-law claims without
prejudice.
Supplemental jurisdiction in the district courts is
governed by 28 U.S.C. § 1367. The statute provides that “the
district courts shall have supplemental jurisdiction over all other
claims that are so related to claims in the action within such
original jurisdiction that they form part of the same case or
controversy under Article III of the United States Constitution.”
28 U.S.C. § 1367(a); see De Asencio, 342 F.3d at 308. The
statute also permits a district court to decline the exercise of
supplemental jurisdiction if “the district court has dismissed all
claims over which it has original jurisdiction[.]” 28 U.S.C.

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The statute also authorizes district courts to dismiss23
state-law claims for other reasons that are not relevant here.
49
§ 1367(c)(3) ; see New Rock Asset Partners v. Preferred Equity23
Advancements, Inc., 101 F.3d 1492, 1507 n.11 (3d Cir. 1996).
The decision to retain or decline jurisdiction over state-law
claims is discretionary. Annulli v. Panikkar, 200 F.3d 189, 203
(3d Cir. 1999), overruled on other grounds by Rotella v. Wood,
528 U.S. 549 (2000). That discretion, however, is not unbridled.
Rather, the decision “should be based on considerations of
‘judicial economy, convenience and fairness to the litigants.’”
New Rock, 101 F.3d at 1505 (quoting United Mine Workers v.
Gibbs, 383 U.S. 715, 726-27 (1966)). If a district court decides
not to exercise supplemental jurisdiction and therefore dismisses
state-law claims, it should do so without prejudice, as there has
been no adjudication on the merits. See Figueroa, 188 F.3d at
182.
Here, the District Court plainly recognized its discretion
to retain jurisdiction over Kach’s remaining state-law claims
but, having dismissed all of her federal claims, declined to do so
for a reason that Congress explicitly green-lighted under these
circumstances. See 28 U.S.C. § 1367(c)(3); see also, e.g.,
Figueroa, 188 F.3d at 181. Furthermore, in accordance with our
precedents, the District Court’s dismissal of Kach’s state-law
claims was without prejudice. See, e.g., Elmore v. Cleary, 399
F.3d 279, 283 (3d Cir. 2005); Heffernan v. Hunter, 189 F.3d
405, 414 n.8 (3d Cir. 1999). Accordingly, we do not find that
the District Court abused its discretion in deciding not to
exercise supplemental jurisdiction over Kach’s state-law claims.

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In light of our disposition, we do not reach any of the24
alternative grounds for affirmance the defendants have
advanced.
50
IV. CONCLUSION
Kach suffered an indescribable ordeal that essentially
stripped her of her adolescence and young adulthood. Her
unique circumstances notwithstanding, we are compelled to
conclude that Kach forewent her right to relief in federal court
by waiting too long to assert her rights. Accordingly, we will
affirm the District Court’s grant of summary judgment on
statute-of-limitations grounds. We will also affirm the District
Court’s grant of summary judgment for Hose on the ground that
he was not acting under color of law as well as the District
Court’s dismissal of Kach’s state-law claims.24

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