Timothy Trimble v. Jack Shaw ( 2014 )


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  •                                                             NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ___________
    No. 14-1636
    ___________
    TIMOTHY E. TRIMBLE,
    Appellant
    v.
    JACK SHAW, OSCE Official;
    DANIEL N. RICHARD, Director in Personal capacity, other unknown
    officials in their personal capacity for the Commonwealth of Pennsylvania;
    JOSEPH SIGNORE; SUSAN LAMPING; JEFFREY DESANZO; LOU PASQUELIN;
    JAN HOFFMAN; CAROLE COLLELLA; ATTORNEY URICK, in personal capacity,
    other unknown officials in their personal capacity of Beaver County, Pa.
    ____________________________________
    On Appeal from the United States District Court
    for the Western District of Pennsylvania
    (D.C. Civil Action No. 2:13-cv-00172)
    District Judge: Honorable Arthur J. Schwab
    ____________________________________
    Submitted Pursuant to Third Circuit LAR 34.1(a)
    August 12, 2014
    Before: JORDAN, COWEN and BARRY, Circuit Judges
    (Opinion filed: August 14, 2014 )
    ___________
    OPINION
    ___________
    PER CURIAM
    Timothy E. Trimble initiated a civil action in the United States District Court for
    the Western District of Pennsylvania in March 2013. In his second amended in forma
    pauperis complaint, Trimble sued the defendants pursuant to 42 U.S.C. § 1983 in relation
    to allegedly unconstitutional actions that occurred in, and as a result of, his 1993 divorce
    proceedings. Essentially, he objected to how the divorce proceedings were conducted in
    the 1990s, including the role of the domestic relations hearing officers in his case. He
    also complained about the garnishment of his wages and Social Security disability
    payments through July 2010. He submitted lengthy appendices to the District Court in
    support of his claims that included his correspondence on these and related matters from
    1993 until 2010.
    The defendants (all but Shaw, who had not been served) filed motions to dismiss
    the second amended complaint, arguing, inter alia, that Trimble’s claims were time-
    barred. A Magistrate Judge issued a report, recommending that the motions be granted
    because Trimble’s claims were untimely on the face of the complaint. The Magistrate
    Judge also stated that the claims against Shaw be dismissed sua sponte under 28 U.S.C.
    § 1915(e) on the same basis. Trimble objected, arguing, among other things, that his
    claims could be considered timely because he did not immediately discover some of the
    alleged wrongdoing and also because he had been too depressed to appreciate the
    ramifications of the defendants’ action. Regarding the time-bar, in his second amended
    complaint, he additionally noted that he did file a complaint in a federal district court in
    2
    Florida within two years of 2010. The District Court rejected Trimble’s objections,
    adopted the report and recommendation, and dismissed the complaint. Trimble twice
    sought reconsideration, which the District Court twice denied.1 Trimble appeals.
    We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise
    plenary review over the order dismissing Trimble’s second amended complaint. See
    McGovern v. City of Phila., 
    554 F.3d 114
    , 115 (3d Cir. 2009); Allah v. Seiverling, 
    229 F.3d 220
    , 223 (3d Cir. 2000). Generally, our review of an order denying a motion for
    reconsideration is for abuse of discretion, but, to the extent the denial is based on the
    interpretation and application of a legal precept, our review is plenary. See Koshatka v.
    Phila. Newspapers, Inc., 
    762 F.2d 329
    , 333 (3d Cir. 1985). We review orders denying
    appointment of counsel for abuse of discretion. See Tabron v. Grace, 
    6 F.3d 147
    , 155 n.4
    (3d Cir. 1993). Upon review, we will affirm the District Court’s judgment.
    The District Court properly dismissed the complaint because Trimble’s claims
    were time-barred on the face of his second amended complaint. If a plaintiff’s
    allegations, taken as true, show that relief is barred by the applicable statute of
    limitations, a complaint is subject to dismissal for failure to state a claim. See Jones v.
    Bock, 
    549 U.S. 199
    , 215 (2007); see also, e.g., Bethel v. Jendoco Constr. Corp., 
    570 F.2d 1168
    , 1174 (3d Cir. 1978). Furthermore, although the running of the statute of
    limitations is an affirmative defense, see Fed. R. Civ. P. 8(c), where that defense is
    1
    In the course of the proceedings, the District Court also denied Trimble’s motions to
    3
    obvious from the face of the complaint and no development of the record is necessary, a
    court may dismiss a time-barred complaint sua sponte under 28 U.S.C.
    § 1915(e)(2)(B)(ii) for failure to state a claim. See, e.g., Fogle v. Pierson, 
    435 F.3d 1252
    ,
    1258 (10th Cir. 2006); cf. Ball v. Famiglio, 
    726 F.3d 448
    , 459-60 (3d Cir. 2013) (ruling
    that a dismissal for failure to state a claim based on an affirmative defense that is clear on
    the face of a complaint can constitute a strike under 28 U.S.C. § 1915(g)).
    Trimble’s claims, made pursuant to 42 U.S.C § 1983, are governed by 42 Pa.
    Cons. Stat. § 5524(2), Pennsylvania’s two-year statute of limitations for tort actions. See
    Kach v. Hose, 
    589 F.3d 626
    , 634 (3d Cir. 2009); Napier v. Thirty or More Unidentified
    Fed. Agents, Emps. or Officers, 
    855 F.2d 1080
    , 1087 (3d Cir. 1988). They accrued when
    he knew or should have known of the injuries on which his claims are based. See
    Sameric Corp. v. Philadelphia, 
    142 F.3d 582
    , 599 (3d Cir. 1998).
    All of Trimble’s claims accrued more than two years before he filed his civil
    action in the District Court. Some of the claims accrued decades ago. At the latest, his
    most recent claims, those relating to the garnishment, accrued in July 2010. See
    Complaint at 29 (“The last action that beaver [sic] County had taken on this case
    occurred July 6, 2010.”) Considering his allegations, we conclude that Trimble knew of
    any injuries at the times described in his complaint. Although he states that he could not
    discover the claims previously, his allegations and the voluminous appendices with his
    appoint counsel.
    4
    detailed correspondence about these matters throughout the decades belies that claim,
    including his argument that depression impeded his awareness. That Trimble filed a
    complaint in another district court previously does not change the date he initiated this
    action.2 For these reasons, the District Court properly dismissed Trimble’s second
    amended complaint as time-barred.
    Furthermore, the District Court properly denied reconsideration because Trimble
    did not present a basis for it. See Max’s Seafood Cafe by Lou-Ann, Inc. v. Quinteros,
    
    176 F.3d 669
    , 677 (3d Cir. 1999). Also, because the applicable statute of limitations
    clearly barred Trimble’s complaint, the District Court did not abuse its discretion in
    denying appointed counsel. See Tabron v. Grace, 
    6 F.3d 147
    , 155 (3d Cir. 1993)
    (explaining that before appointing counsel, a court must, as a threshold matter, determine
    if a case has arguable merit in fact and in law).
    For these reasons, we will affirm the District Court’s judgment.
    2
    In his reply brief, Trimble also presents an argument that he suffers a “continuing
    wrong” that would make his claims timely. First, it does not appear that he presented this
    argument in his opening brief or in the District Court. As we have explained, absent
    compelling circumstances, which are not present here, we will not consider issues raised
    for the first time on appeal. See Shell Petroleum, Inc. v. United States, 
    182 F.3d 212
    , 219
    (3d Cir. 1999). Also, issues in dispute on appeal should be raised in an opening brief, not
    in reply. See, e.g., Ethypharm S.A. Fr. v. Abbott Labs., 
    707 F.3d 223
    , 231 n.13 (3d Cir.
    2013) (explaining that issues not so raised may be considered waived). Lastly, we note
    that although Trimble uses the term “continuing wrong,” he does not present a case that
    fits within the doctrine. See Island Insteel Sys., Inc. v. Waters, 
    296 F.3d 200
    , 214 n.8 (3d
    Cir. 2002) (describing the doctrine).
    5