Wooden v. Eisner ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
8-18-2005
Wooden v. Eisner
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-1725
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Recommended Citation
"Wooden v. Eisner" (2005). 2005 Decisions. Paper 678.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/678
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BPS-338 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-1725
________________
HERMAN WOODEN, JR.,
Appellant
v.
CASE MANAGER, SUSAN EISNER,
LSCI Allenwood
_______________________________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 03-cv-00190)
District Judge: Honorable Yvette Kane
_______________________________________
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
August 11, 2005
Before: RENDELL, FISHER AND VAN ANTWERPEN, CIRCUIT JUDGES
(Filed August 18, 2005)
_______________________
OPINION
_______________________
PER CURIAM.
Herman Wooden, Jr., an inmate at the Federal Correctional Institution in Fairton,
New Jersey (“FCI-Fairton”), filed a pro se complaint pursuant to Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), against numerous
prison officials. The District Court found that the complaint did not comply with Federal
Rule of Civil Procedure 20, but granted Wooden leave to amend it, cautioning him that
failure to properly amend would result in dismissal of all claims except the one against
defendant Susan Eisner, a case manager at FCI-Fairton. Thereafter, the District Court
twice-granted Wooden an extension of time to file an amended complaint. When
Wooden failed to properly amend, the District Court dismissed all claims except that
against Eisner. In his surviving claim, Wooden alleged that Eisner denied Wooden access
to the courts by failing to give him time off from his work detail to prepare an appeal for
his 28 U.S.C. § 2255 motion.
Eisner filed a motion to dismiss, contending that Wooden failed to file his
complaint within the applicable two-year statute of limitations, and that Wooden failed to
exhaust administrative remedies. The District Court granted Eisner’s motion to dismiss,
finding that because Wooden did not properly allege a 42 U.S.C. § 1985 conspiracy, the
five-year statute of limitations in § 1985 does not apply. Moreover, it found that Wooden
knew or should have known of the alleged injury, at the latest, on June 10, 2000, when
the Fourth Circuit Court of Appeals denied rehearing on the appeal of Wooden’s § 2255
motion. Therefore, applying the two-year statute of limitations, the District Court
dismissed the complaint as time-barred. Wooden filed a motion for reconsideration,
further contending that his cause of action did not accrue until December 2002 when he
was “definitely” put on notice that a wrong has been committed and was entitled to
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redress. The District Court rejected this argument, and denied the motion.
Wooden timely filed this appeal. He has been granted leave to proceed in forma
pauperis on appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291. When an
appellant proceeds in forma pauperis, we must dismiss the appeal if it is “frivolous.” 28
U.S.C. § 1915(e)(2)(B)(I). A frivolous appeal has no arguable basis in law or fact.
Neitzke v. Williams, 490 U.S. 319, 325 (1989). After a careful review of the record, we
will dismiss this appeal as frivolous.
As the District Court explained, a Bivens claim in which the plaintiff is alleging
personal injury has a two-year statute of limitations. See Kost v. Kozakiewicz, 1 F.3d
176, 190 (3d Cir. 1993); King v. One Unknown Fed. Correctional Officer, 201 F.3d 910,
913 (7th Cir. 2000) (noting that same state statute of limitations applies to all Bivens and
§ 1983 claims); 42 Pa. Cons. Stat. § 5524. A Bivens claim accrues when the plaintiff
knows, or has reason to know, of the injury that forms the basis of the action. Sameric
Corp. of Del. v. City of Phila., 142 F.3d 582, 599 (3d Cir. 1998). Wooden’s action
against Eisner accrued, at the latest, on June 10, 2000, upon the Fourth Circuit Court of
Appeals’ denial of rehearing on the appeal of Wooden’s § 2255 motion. Because
Wooden filed the instant action on January 31, 2003, he was beyond the statutory period,
and thus his Bivens claim against the Eisner was properly dismissed as time barred.
In conclusion, because Wooden’s appeal lacks arguable merit in fact or law, we
will dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B)(I).
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