United States District Court, M.D. Pennsylvania
M. MUNLEY, United States District Court Judge
Toomes (“Plaintiff”), at all relevant times, an
inmate incarcerated at the United States Penitentiary at
Canaan (“USP-Canaan”), Waymart, Pennsylvania,
filed this action on April 27, 2017, pursuant to Bivens
v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388
(1971), and the Federal Tort Claims Act (FTCA”), 28
U.S.C. §§ 1346(b), 2401, 2671, et seq.
(Docs. 1, 4-1). He names USP Canaan and the United States of
America as Defendants. (Id.)
seeks to proceed in forma pauperis. (Doc. 8). A
federal court must dismiss a civil action filed in forma
pauperis if the court determines that the complaint
“fails to state a claim on which relief may be
granted.” 28 U.S.C. §1915(e)(2)(B)(ii). For the
reasons set forth below, the Court concludes that the
complaint is subject to dismissal pursuant to 28 U.S.C.
STANDARDS OF REVIEW
legal standard for dismissing a complaint for failure to
state a claim pursuant to § 1915(e)(2)(B)(ii) is
identical to the legal standard used when ruling on Rule
12(b)(6) motions. Tourscher v. McCullough, 184 F.3d
236, 240 (3d Cir. 1999) (applying Fed.R.Civ.P. 12(b)(6)
standard to dismissal for failure to state a claim under
well-pleaded complaint must contain more than mere labels and
conclusions. See Ashcroft v. Iqbal, 556 U.S. 662
(2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544
(2007). In reviewing the legal sufficiency of a complaint,
the Court must accept the truth of the factual allegations.
Morrison v. Madison Dearborn Capital Partners III
L.P., 463 F.3d 312, 314 (3d Cir. 2006). Notably, the
assumption of truth is inapplicable to legal conclusions or
to “[t]hreadbare recitals of the elements of a cause of
action supported by mere conclusory statements.”
Iqbal, 556 U.S. at 678. The controlling question is
whether the complaint “alleges enough facts to state a
claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 555 (rejecting the “no
set of facts” language from Conley v. Gibson,
355 U.S. 41, 45-46 (1957) and requiring plaintiffs to allege
facts sufficient to “raise a right to relief above the
speculative level”); see also Iqbal, 556 U.S.
at 678 (explaining that Rule 8 requires more than “an
unadorned, the-defendant unlawfully-harmed-me
accusation”); see also Fed. R. Civ. P. 8(a)
(stating that the complaint should include “a short and
plain statement of the claim showing that the pleader is
entitled to relief”).
the court is generally limited in its review to the facts
contained in the complaint, it “may also consider
matters of public record, orders, exhibits attached to the
complaint and items appearing in the record of the
case.” Oshiver v. Levin, Fishbein, Sedran &
Berman, 38 F.3d 1380, 1384 n. 2 (3d Cir. 1994); see
also In re Burlington Coat Factory Sec. Litig., 114 F.3d
1410, 1426 (3d Cir. 1997).
ALLEGATIONS OF THE COMPLAINT
alleges that on August 29, 2013, while incarcerated at
USP-Canaan, he was assaulted by a corrections officer. (Doc.
1, pp. 1, 2; Doc. 4-1, pp. 1, 2). He alleges that he suffered
severe injuries requiring transport to an outside hospital.
(Id. at 3, 4; Id. at 3, 4). He seeks
compensatory and punitive damages. (Id. at 4;
Id. at 5).
may dismiss a complaint for failure to state a claim, based
on a time-bar, where “the time alleged in the statement
of a claim shows that the cause of action has not been
brought within the statute of limitations.” Bethel
v. Jendoco Construction Corp., 570 F.2d 1168, 1174 (3d
Cir. 1978) (citation omitted). Although the statute of
limitations is an affirmative defense which may be waived by
the defendant, it is appropriate to dismiss sua
sponte under 28 U.S.C. § 1915(e)(2) a pro
se civil rights claim whose untimeliness is apparent
from the face of the complaint. See Jones v. Bock,
549 U.S. 199, 214-15 (2007) (holding if the allegations of a
complaint, “for example, show that relief is barred by
the applicable statute of limitations, the complaint is
subject to dismissal for failure to state a claim”).
civil rights claims brought pursuant to 42 U.S.C. §
1983, the statute of limitations for Bivens claims
is subject to the same statute of limitations that applies to
personal injury tort claims in the state in which such a
claim arises. See Wallace v. Kato, 549 U.S. 384, 387
(2007); Kach v. Hose, 589 F.3d 626, 639 (3d Cir.
2009). Plaintiff's claim arose in Pennsylvania; thus, the
applicable statute of limitations is Pennsylvania's two
year statute of limitations for personal injury actions. 42
Pa. Cons. Stat. Ann. § 5524(2).
statute of limitations period accrues when the plaintiff
knows or has reason to know of the injury which is the basis
of the section 1983 action. See Garvin v. City of
Phila., 354 F.3d 215 (3d Cir. 2003); Genty v.
Resolution Trust Corp., 937 F.2d 899, 919 (3d Cir.1991).
It is clear from the complaint that the Bivens claim
accrued on August 29, 2013, the date of the alleged assault.
This action was commenced on April 24, 2017, the date on
which the complaint was signed and presumably delivered to
prison authorities for mailing. See Houston v. Lack,
487 U.S. 266 (1988) (holding that that date on which a
prisoner delivers documents to prison authorities for mailing