                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 18-3699
                                       ___________

                                   SHAN CHILCOTT,
                                                Appellant

                                             v.

                              ERIE COUNTY PRISON;
                                 CITY OF ERIE PA
                       ____________________________________

                    On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                                (D.C. No. 1-17-cv-00341)
                    Magistrate Judge: Honorable Richard A. Lanzillo
                     ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    May 17, 2019

           Before: CHAGARES, BIBAS, and GREENBERG, Circuit Judges

                               (Opinion filed May 17, 2019)
                                      ___________

                                        OPINION*
                                       ___________

PER CURIAM

       Shan Chilcott appeals the dismissal of his action for failure to state a claim. For



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
the following reasons, we will affirm.

       Chilcott brought suit against the City of Erie and Erie County Prison (collectively,

Appellees) pursuant to 42 U.S.C. § 1983, alleging that he was subject to a “campaign of

abuse” during his incarceration. According to Chilcott’s complaint, his suit is based on

five separate incidents. Dkt. #4. The first incident involved a nurse at Erie County

Prison taking Chilcott’s blood in 1998. Chilcott alleged the nurse used the same needle

on a prior inmate, which resulted in Chilcott contracting Hepatitis C. The second inci-

dent involved two prison guards at Erie County Prison forcing Chilcott to sign the deed

of his house over to the sister of one of the guards. The third incident involved unnamed

individuals who allegedly searched Chilcott’s house on behalf of the City of Erie and

confiscated several guns without a warrant or due process. The fourth incident in Chil-

cott’s complaint alleges that an Erie Sheriff used a Taser on him and forced him into

small handcuffs sometime in 2014. Finally, the fifth incident in the complaint alleges

that the work release program at the Erie County Prison does not allow disabled people to

participate. Chilcott alleges a “Mr. Mallory” told him this in October of 2017.

       In response to the complaint, Appellees filed separate motions to dismiss, arguing,

inter alia, that Chilcott’s claims were barred by the relevant statute of limitations, res ju-

dicata, and/or a lack of administrative exhaustion.1 The Magistrate Judge2 took judicial


1
 Although statute of limitations and res judicata are affirmative defenses, they can be as-
serted on a motion to dismiss. See Adams v. Gould Inc., 739 F.2d 858, 870 n.14 (3d Cir.
1984).
2
 The parties consented to adjudication before a Magistrate Judge pursuant to 28 U.S.C.
§ 636(c)(1).
                                               2
notice of previous lawsuits filed by Chilcott—lawsuits he referenced in his complaint un-

der incident two, three, and five—and used them as the basis for applying the doctrine of

res judicata.3 Additionally, the prior lawsuits helped the Magistrate Judge determine

when these incidents occurred, as Chilcott’s complaint did not explicitly state this infor-

mation for all of his claims. After reviewing the pertinent information, the Magistrate

Judge granted the motions to dismiss, finding that Chilcott’s claims were barred by the

relevant statute of limitations, res judicata, a lack of administrative exhaustion, or a com-

bination of the three, and dismissed the complaint with prejudice. Chilcott timely ap-

pealed.

       We have jurisdiction over the appeal of the Magistrate Judge’s order. See

28 U.S.C. §§ 636(c)(3), 1291. We review the grant of the motions to dismiss pursuant to

Rule 12(b)(6) de novo. Newark Cab Ass’n v. City of Newark, 901 F.3d 146, 151 (3d Cir.

2018). “To survive a motion to dismiss, a complaint must contain sufficient factual alle-

gations, taken as true, to ‘state a claim to relief that is plausible on its face.’” Fleisher v.

Standard Ins., 679 F.3d 116, 120 (3d Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007)). Furthermore, “a complaint need not anticipate or overcome af-

firmative defenses; thus, a complaint does not fail to state a claim simply because it omits

facts that would defeat a statute of limitations defense.” Schmidt, 770 F.3d at 248. We

accept all factual allegations in the complaint as true and construe those facts in the light



3
 These previous lawsuits are matters of public record. See Schmidt v. Skolas, 770 F.3d
241, 249 (3d Cir. 2014) (noting, when deciding a motion to dismiss, courts may consider
matters of public record).
                                                3
most favorable to the plaintiff. Fleisher, 679 F.3d at 120.

       In his brief on appeal, Chilcott does not challenge the Magistrate Judge’s determi-

nation that incident two (involving the deed of his house) was barred by the applicable

statute of limitations and the doctrine of res judicata. Chilcott also does not challenge the

Magistrate Judge’s finding that incident five (alleging the prison work release program

does not allow disabled people to participate) was barred due to his failure to exhaust his

administrative remedies. Consequently, we are inclined to view Chilcott’s brief—which

sets forth neither of these issues addressed by the Magistrate Judge and contains no cita-

tion to authority or the record—as effectively waiving any challenge to the Magistrate

Judge’s rulings on these matters.4 See Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir.

1993) (noting that if an appellant fails “to set forth the issues raised on appeal and to pre-

sent an argument in support of those issues in their opening brief” those issues are nor-

mally deemed “abandoned and waived . . . on appeal and [they] need not be addressed by

the court of appeals”).

       Turning to those issues that are before us, we agree with the Magistrate Judge that

incidents one, three, and four are barred by the statute of limitations.5 Here, the applica-

ble statute of limitations is two years. See Kach v. Hose, 589 F.3d 626, 634 (3d Cir.



4
  While we construe Chilcott’s pro se filings liberally, this policy does not prevent us
from applying the waiver doctrine to his pro se appeal. See, e.g., Emerson v. Thiel Coll.,
296 F.3d 184, 190 n.5 (3d Cir. 2002) (per curiam); Gambino v. Morris, 134 F.3d 156, 161
n.10 (3d Cir. 1998).
5
  Since this determination is dispositive of the appeal, we need not address the applicabil-
ity of the doctrine of res judicata as to these issues.

                                              4
2009); 42 Pa. Cons. Stat. § 5524. As noted by the Magistrate Judge, incident one (in-

volving the infected needle) occurred in 1998. Incident three (the alleged confiscation of

Chilcott’s firearms) took place in 2010.6 Incident four (where the Erie Sheriff tasered

and handcuffed Chilcott) took place in 2014. Because Chilcott’s action was commenced

at the earliest on December 18, 2017—well outside the applicable two-year statute of

limitation for any of these incidents—we agree with the Magistrate Judge’s dismissal of

Chilcott’s claims, as it is apparent from the face of his complaint that his claims are time-

barred. See Schmidt, 770 F.3d at 249.

       On appeal, Chilcott argues that the statute of limitations should be tolled as to inci-

dent one, because he did not discover he was infected with Hepatitis C until years later.

“[A] cause of action accrues, and the statute of limitations begins to run, when the plain-

tiff knew or should have known of the injury upon which its action is based.” Kach, 589

F.3d at 634 (internal quotation marks omitted). Determining when a claim accrues is an

objective inquiry: “we ask not what the plaintiff actually knew but what a reasonable per-

son should have known.” Id. (emphasis added). Here, in his response to Erie County

Prison’s motion to dismiss, Chilcott indicated that he knew the inmate who had blood

drawn before him “was sick,” but that he did not specifically know that the inmate had

Hepatitis C. Dkt. #30. Further, he noted that he “got tested upon release” for AIDS, be-

cause that was what Chilcott was afraid of contracting. Dkt. #30. Thus, even if Chilcott




6
  As noted above, this incident was the subject of a prior lawsuit, which indicated that this
incident took place in July of 2010. Suppl. App. at 5.
                                              5
did not know specifically that he was infected with Hepatitus C until years later, his ac-

tions nevertheless indicate that he was aware that an injury had occurred when he was

exposed to the infected needle in 1998. See Kach, 589 F.3d at 634; Schmidt, 770 F.3d at

251–52 (noting, where a court entertains a motion to dismiss on statute of limitations

grounds, a plaintiff is not required to plead facts sufficient to overcome such an affirma-

tive defense; however, dismissal may nevertheless be appropriate when the plaintiff ef-

fectively alleges facts sufficient to establish the defense).

       Chilcott also argues on appeal that incident three (the confiscation of his firearms)

and incident four (the tasering/handcuff incident) are related. He appears to argue that,

because these two incidents are related, and that incident four happened less than two

years from the time he filed one of his previous lawsuits related to incident three, he has

somehow preserved both claims for consideration in his current suit. See Appellant’s Br.

4–5. Even if these two incidents were related, Chilcott very clearly indicated in his com-

plaint that incident four occurred in 2014, which is more than two years from the date his

current action was commenced (December 18, 2017). See Robinson v. Johnson, 313

F.3d 128, 135 (3d Cir. 2002) (noting a statute of limitations defense may serve as the ba-

sis for a dismissal under Rule 12(b)(6) when the time-bar is apparent on the face of the

complaint).

       Accordingly, for all of the foregoing reasons, we will affirm the Magistrate

Judge’s judgment. Furthermore, given the circumstances of this case, including the fact

that Chilcott has previously brought suits based on several of the incidents in his com-

plaint, the Magistrate Judge did not err in finding that any further amendment would be

                                               6
futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 111 (3d Cir. 2002). We

grant the City of Erie’s motion for leave to file its supplemental appendix.




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