Sherri Koehnke v. City of McKeesport

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 08-4519
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SHERRI KOEHNKE,
Appellant
v.
CITY OF MCKEESPORT;
E. MICHAEL ELIAS; TOM CARTER
_____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
D.C. Civil Action No. 08-cv-0759
(Honorable Gary L. Lancaster)
_____________
Submitted Under Third Circuit L.A.R. 34.1(a),
October 27, 2009
Before: SLOVITER, FUENTES, and HARDIMAN, Circuit Judges.
(Opinion Filed: October 28, 2009)
OPINION OF THE COURT
FUENTES, Circuit Judge:
Appellant Sherri Koehnke appeals from the final order of the District Court, which
granted Appellees’ motion for summary judgment. Ms. Koehnke filed this lawsuit

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against the City of McKeesport (the “City”) and two of its police officers, alleging that
the police botched their investigation into her daughter’s disappearance and thereby
violated Ms. Koehnke’s constitutional rights. The District Court granted the defendants’
motion for summary judgment, concluding that Ms. Koehnke’s claims were time-barred.
We will affirm.
I.
We write primarily for the parties, who are familiar with the background of this
case, and so we review only those facts necessary to our analysis. Ms. Koehnke is the
mother of Tanya Kach, who, in early 1996, resided with Ms. Koehnke’s ex-husband,
Jerry Kach, Jr., in McKeesport, Pennsylvania. On February 10, 1996, then-fourteen-
year-old Tanya ran away from home. Unbeknownst to her parents, Tanya had developed
an intimate relationship with Thomas Hose, a thirty-seven-year-old security guard at her
school, and on the day she left Mr. Kach’s residence, Tanya moved in with Mr. Hose and
his parents without informing anyone of her whereabouts.
After Ms. Koehnke learned that her daughter had gone missing, she noticed Mr.
Hose’s telephone number on her telephone bill for the date when Tanya had last visited
her home. Ms. Koehnke called Mr. Hose to ask him if he knew anything about Tanya’s
disappearance, but Mr. Hose told her that he did not know Tanya and knew nothing about
her whereabouts. After Ms. Koehnke spoke with Mr. Hose, she and Mr. Koehnke visited
the McKeesport Police Department, where she spoke with Officer Elias. Ms. Koehnke

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informed Officer Elias that Tanya was friends with Mr. Hose and that Tanya had called
him from Ms. Koehnke’s house before her disappearance. Ms. Koehnke also told Officer
Elias that she had called Mr. Hose to ask if he knew anything about her daughter’s
whereabouts, and that he denied knowing Tanya at all. Police investigators paid a visit to
Mr. Hose’s residence; the officers spoke with Mr. Hose but did not enter the premises
because Mr. Hose told them that his parents were sleeping inside.
In 1998 or 1999, Ms. Koehnke again informed the McKeesport Police Department
that she suspected that Mr. Hose was involved in Tanya’s disappearance. The officer she
spoke with assured her that the Department had investigated Mr. Hose and had
determined that he “ha[d] nothing to do with” Tanya’s disappearance. (App. 92.)
On March 21, 2006, a decade after she ran away from home, Tanya disclosed her
identity to Joe Sparico, the owner of a local convenience store, and informed him of the
fact that she had been living in Mr. Hose’s home for the last ten years. Mr. Sparico
contacted the authorities, and law enforcement officers removed Tanya from Mr. Hose’s
home. In the days following these events, Tanya’s reappearance, and the fact that she had
spent a decade living with Mr. Hose, were covered extensively by the local media, and
reporters had “camped out” in front of Ms. Koehnke’s house. (App. 104.) Ms. Koehnke
spoke with Tanya on March 23, 2006, and was reunited with her in person the next day.
Ms. Koehnke filed this lawsuit on June 2, 2008, alleging that the City had a policy
or custom of failing to train police officers in the handling of missing children cases, as

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Defendants styled their motion as one seeking dismissal or summary judgment.1
Because Defendants submitted documentary evidence in support of their motion, and
because Ms. Koehnke submitted evidence in opposition thereto, the District Court
properly treated the motion as a motion for summary judgment.
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well as a policy or custom of inadequately investigating citizen complaints. She asserts
that the defendants violated her due process and equal protection rights. The defendants
moved for summary judgment. The District Court granted the motion, concluding that1
the statute of limitations on Ms. Koehnke’s claims expired more than two months before
she filed this lawsuit. Koehnke filed this timely appeal.
II.
The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343 and
we have jurisdiction under 28 U.S.C. § 1291. Koehnke raises two issues on appeal, one
procedural and one substantive. She first asserts that the District Court abused its
discretion by granting the defendants’ motion for summary judgment before the parties
conducted discovery. In addition, she argues that summary judgment was improvidently
entered, contending that a factual dispute exists as to the timeliness of her claims. We
are not persuaded by either of these arguments, which we address in turn below.
“[W]e review a claim that the district court has prematurely granted summary
judgment for abuse of discretion.” Bradley v. United States, 299 F.3d 197, 206 (3d Cir.
2002) (citation omitted). The Federal Rules of Civil Procedure expressly permit a
defendant to move for summary judgment “at any time,” Fed. R. Civ. P. 56(b), whether

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Although the brief Koehnke submitted to the District Court noted in passing that2
the parties had not conducted discovery, we have made clear that an “attorney’s
unverified memorandum opposing the motion for summary judgment” cannot substitute
for a Rule 56(f) affidavit. Radich v. Goode, 886 F.2d 1391, 1394 (3d Cir. 1989).
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or not the parties have conducted discovery. If the non-moving party believes that its
adversary’s summary judgment motion is premature, that party is not without recourse.
A party that “cannot present facts essential to justify its opposition” may—and, indeed,
must—“show[] by affidavit,” Fed. R. Civ. P. 56(f) (emphasis added), how evidence of
such facts “would preclude summary judgment.” Bradley, 299 F.3d at 206 (citation
omitted). We have been clear that “in all but the most exceptional cases, failure to
comply with Rule 56(f) is fatal to a claim of insufficient discovery on appeal.” Id.
Koehnke’s failure to file a Rule 56(f) affidavit is “fatal” to her contention that the
District Court’s entry of summary judgment was premature, as we find no exceptional
circumstances to justify her unexplained noncompliance with Rule 56(f). Id. Indeed,2
while Koehnke argues that discovery would have enabled her to prove that it was not
until long after Tanya reappeared that Koehnke became aware of the police’s failure to
search Hose’s residence, we agree with the City that Koehnke did not need to conduct
discovery in order to adduce evidence of what she knew and when she knew it. We find
no abuse of discretion in the timing of the District Court’s entry of summary judgment.
We further conclude that the District Court correctly determined that Ms.

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We review a district court’s order granting summary judgment de novo. See3
Antonelli v. New Jersey, 419 F.3d 267, 272 (3d Cir. 2005). Summary judgment is
appropriate if, viewing the record in the light most favorable to the non-movant, there are
no genuine issues of material fact and the movant is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(c).
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Koehnke’s claims are time-barred. Claims brought pursuant to 42 U.S.C. § 1983 are3
subject to the statute of limitations “which the State provides for personal-injury torts,”
Wallace v. Kato, 549 U.S. 384, 387 (2007), which in Pennsylvania is two years. See 42
Pa. Con. Stat. Ann. § 5524. Ordinarily, a section 1983 claim accrues at the time when the
injury is sustained—that is, “when the plaintiff has a complete and present cause of
action.” Wallace, 549 U.S. at 388 (internal quotations and citations omitted).
However, under Pennsylvania’s discovery rule, the accrual of the statute of
limitations may be tolled “for situations in which a party, through no fault of . . . her own,
does not discover her injury until after the statute of limitations normally would have
run.” Debiec v. Cabot Corp., 352 F.3d 117, 129 (3d Cir. 2003). As we have explained:
For the statute of limitations to run, a plaintiff need not know the exact nature
of his injury, as long as it objectively appears that the plaintiff is reasonably
charged with the knowledge that he has an injury caused by another . . . .
Moreover, the plaintiff attempting to apply the discovery rule bears the burden
of demonstrating that he exercised reasonable diligence in determining the
existence and cause of his injury. To demonstrate reasonable diligence, a
plaintiff must establish that he pursued the cause of his injury with 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.
Mest v. Cabot Corp., 449 F.3d 502, 510-11 (3d Cir. 2006) (internal quotations and

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citations omitted).
We agree with the District Court that Koehnke’s claims are time-barred. The
record shows that as of March 24, 2006 at the latest, Koehnke knew (or had every reason
to know) (1) that she had informed the Police Department of the basis of her suspicions
concerning Hose, (2) that the Department had assured her that it had investigated Hose
and determined that he had nothing to do with Tanya’s disappearance, and (3) that the
Department’s determination was erroneous. To the extent that Koehnke sustained a
constitutional injury as a result of the allegedly inadequate investigation, she had, by
March 24, 2006, “sufficient critical facts to put [her] on notice that a wrong has been
committed and that [she] need[ed] investigate to determine whether [she was] entitled to
redress.” Debiec, 352 F.3d at 129 (citation omitted). Koehnke, who “bears the burden of
demonstrating that [s]he exercised reasonable diligence in determining the existence and
cause of [her] injury,” Mest, 449 F.3d at 511, identified no evidence from which a jury
might conclude that she exercised such diligence, as the District Court determined.
In sum, we agree with the District Court that the statute of limitations on
Koehnke’s claims expired on March 24, 2008, more than two months before Koehnke
filed her complaint. We will thus affirm the District Court’s summary judgment order.
III.
For the foregoing reasons, we will affirm the District Court’s grant of summary
judgment.

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