that . . . (B) the action or appeal . . . (iii) fails to state a claim on which relief may be granted"). However, sua sponte dismissal on this ground raises concerns of procedural fairness. The statute of limitations is an affirmative defense ordinarily subject to waiver. Moreover, while a motion would put plaintiff on notice of the defense and provide an opportunity to respond, sua sponte dismissal does not ordinarily provide either. Thus, a discussion of the propriety of the court issuing such a dismissal on its own initiative and before service of process is in order.
This circuit has not yet had the opportunity to speak to this issue since the PLRA expanded the grounds upon which a district court can rule before service of process, but a Second Circuit case decided shortly before passage of the amendments to the in forma pauperis statue is instructive. In Pino v. Ryan, 49 F.3d 51 (2d Cir. 1995)(Newman, Ch. J.), the Second Circuit held, under the old in forma pauperis provisions, that sua sponte dismissal, prior to service of the pro se complaint on the defendants, of an untimely claim is appropriate since such a claim "is based on an indisputably meritless legal theory." Id. at 53. The more potentially controversial aspect of this decision (upholding sua sponte dismissal on limitations grounds as a dismissal for frivolousness under the old § 1915(d)) has been obviated by the PLRA amendments. However, the court's discussion--regarding the propriety of dismissal at the threshold of litigation on the basis of an affirmative defense--raises issues that merit careful consideration.
The Pino court noted that the Second Circuit has often "urged district judges to use caution in deciding whether to dismiss [pro se ] complaints prior to service upon defendants and the filing of a motion or answer." Id. at 52. Such caution is well-advised. The volume of pro se prisoners' claims carries with it the temptation to find short-cuts for their disposition, and the legal process suffers if even claims that are ultimately found meritless are cut off short of the process that all claims are due. As the panel in Pino noted, however, "caution need not lead to paralysis." Id. at 53. The court noted that the Supreme Court's decision in Neitzke suggested that there is nothing particularly special about affirmative defenses that would make them inappropriate for resolution before service of process in pro se cases. One of the two examples given in Neitzke of cases appropriate for dismissal at the threshold was sovereign immunity, 490 U.S. at 327, which is indisputably an affirmative defense.
With regard to the statute of limitations defense, the Pino court pointed out that reservations about sua sponte dismissal are confined to those situations where the court identifies and acts upon the issue after the suit has passed the point at which the issue should have been raised, thus raising concerns about fairness to a plaintiff who has invested time and expense in litigation. 49 F.3d at 53. Here, as was the case in Pino, any such concerns over sunk costs do not obtain. Furthermore, the Pino court pointed out that a dismissal under § 1915 was "especially appropriate" because the action was filed five years after the events in question. Id. In the present case, Johnstone filed his complaint five years after the date in question as well.
Given the cogent analysis of these issues in Pino --a case decided under the more plaintiff-protecting requirements of the old § 1915(d)--and given the further fact that Congress in the PLRA has directed courts to dismiss at any time for failure to state a claim, nothing counsels against dismissal on limitations grounds in this case. When a complaint on its face shows that the action was filed outside of the applicable limitations period, and the court has satisfied itself that no legal rule tolls or otherwise abrogates the limitations period, sua sponte dismissal is appropriate under § 1915. Accordingly, plaintiff's claims against Mehrta and the unnamed Fort Worth safety officer will be dismissed.
5. Johnstone's Workers' Compensation Claim
Johnstone also alleges that he was wrongfully denied medical expenses and compensation under the Inmate Accident Compensation Act, 18 U.S.C. § 1426. This statute provides workers' compensation benefits as the exclusive remedy for federal prisoners who incur work-related injuries. United States v. Demko, 385 U.S. 149, 17 L. Ed. 2d 258, 87 S. Ct. 382 (1966). Judicial review is available for final action on inmate compensation claims under the Administrative Procedure Act. See Thompson v. United States Federal Prison Industries, 492 F.2d 1082 (5th Cir. 1974); 5 U.S.C. § 701-06. Johnstone alleges that he timely filed his workers' compensation claim and that the claim was ultimately denied by the chief operating officer on June 1, 1995. Accordingly, Johnstone's request for judicial review states a claim for which relief may be granted, and is neither frivolous nor asserted against defendants who are immune. Therefore, as to the request for review of the Inmate Accident Compensation Act claims only, Johnstone's complaint may go forward against the appropriate defendants. Finally, Johnstone's request for appointment of counsel will be denied.
An appropriate order follows.
AND NOW, this 3 day of November 1996, IT IS ORDERED that:
1. Plaintiff's request for appointment of counsel is hereby DENIED.
2. All civil rights claims as stated in counts one, two, and three of plaintiff's complaint are hereby DISMISSED with prejudice.
3. (a) Only plaintiff's claims, found in the amended complaint's "Fourth Cause of Action," for judicial review of the Federal Prison Industries Inmate Accident Compensation Board order, may go forward.
(b) The amended complaint is to be filed, and, with respect to the claims found in the amended complaint's "Fourth Cause of Action," service of the summons and complaint is to be made upon the following defendants by the U.S. Marshals Service: The Federal Bureau of Prisons, Federal Prison Industries, and Steve Schwalb.
5. The Clerk of Court shall make service upon the United States with respect claims found in the amended complaint's "Fourth Cause of Action" by sending a copy of the summons and complaint by certified mail addressed to the civil process clerk at the office of the United States Attorney, and to the Attorney General of the United States at Washington, District of Columbia.
6. Copies of this memorandum and order are to be served upon all defendants by the Clerk of Court.
7. All original pleadings and other papers submitted for consideration to the Court in this case are to be filed with the Clerk of this Court. Copies of papers filed in this Court are to be served upon counsel for all other parties (or directly on any party acting pro se). Service may be by mail must be accompanied by proof that service has been made in the form of a certificate of service. This certificate should be filed in the case along with the original papers and should show the day and manner of service. An example of a certificate of service by mail follows:
"I, (name), do hereby certify that a true and correct copy of the foregoing (name of pleading or other paper) has been served upon (name(s) of person(s) served) by placing the same in the U.S. Mail, properly addressed, this (date) day of (month), (year).