CLD-061                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 14-3878
                                       ___________

                                  LEVON T. WARNER,
                                              Appellant

                                             v.

                        B. PIETRINI & SONS CONSTRUCTION
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                               (D.C. Civil No. 14-cv-04610)
                     District Judge: Honorable William H. Yohn, Jr.
                      ____________________________________

        Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
        or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                 December 11, 2014
       Before: FUENTES, GREENAWAY, JR. and VANASKIE, Circuit Judges

                             (Opinion filed: January 7, 2015)
                                       _________

                                        OPINION*
                                        _________

PER CURIAM




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
          Appellant Levon Warner appeals from an order of the District Court dismissing

his complaint under 28 U.S.C. § 1915(e)(2)(B)(i). For the following reasons, we will

affirm.

          On August 4, 2014, Warner filed suit under 42 U.S.C. § 1983 against B. Pietrini &

Sons Construction, alleging that Pietrini wrongfully failed to fully compensate him for

permanent heart damage he sustained while working for Pietrini on February 19, 2008.

On August 7, 2014, the District Court granted Warner’s motion to proceed in forma

pauperis and dismissed his complaint with prejudice as frivolous under 28 U.S.C.

§ 1915(e)(2)(B)(ii). Warner timely requested reconsideration, which the District Court

denied on August 27, 2014. Warner filed a timely notice of appeal. 1

          We have jurisdiction under 28 U.S.C. § 1291 and exercise plenary review over the

District Court’s dismissal of Warner’s complaint under § 1915(e). See Allah v.

Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). We may summarily affirm the District

Court’s judgment if an appeal presents no substantial question. See 3rd Cir. LAR 27.4

and I.O.P. 10.6.

          To state a claim under § 1983, a plaintiff must allege that a right secured by the

Constitution or laws of the United States was violated by a person acting under color of

1
  Warner’s notice of appeal mentioned only the original order dismissing his complaint.
To the extent he seeks to appeal the denial of reconsideration as well, the District Court
did not abuse its discretion in denying reconsideration. See Max’s Seafood Café v.
Quinteros, 176 F.3d 669, 673 (3d Cir. 1999). Warner did not identify an intervening
change in controlling law, any newly discovered evidence, or a clear error in law or fact
to justify altering or amending the court’s judgment. See id. at 677 (citing N. River Ins.
Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)).
                                                2
state law. West v. Atkins, 487 U.S. 42, 48 (1988). To act under color of state law, one

must “have exercised power ‘possessed by virtue of state law and made possible only

because the wrongdoer is clothed with the authority of state law.’” Abbott v. Latshaw,

164 F.3d 141, 146 (3d Cir. 1998) (quoting West, 487 U.S. at 49). Warner made no

allegations supporting even an arguable inference that Pietrini, a private entity, was

acting under color of state law when it engaged in the conduct at issue in this case. See

West, 487 U.S. at 49.

       Moreover, § 1983 claims are governed by the statute of limitations for personal

injury torts in the state where the claim arose. Wallace v. Kato, 549 U.S. 384, 387

(2007). In Pennsylvania, where Warner worked for Pietrini when he sustained his injury,

that limitations period is two years. See 42 Pa. Cons. Stat. § 5524. A § 1983 cause of

action accrues when the plaintiff knows or has reason to know of the injury that

constitutes the basis of his claim. Sameric Corp. of Del., Inc. v. City of Phila., 142 F.3d

582, 599 (3d Cir. 1998). Warner alleged that he has been attempting to obtain

compensation from Pietrini for his heart condition since he was originally hospitalized in

February 2008. This indicates that Warner knew of his injury and Pietrini’s alleged role

in causing it at that time. See id. He did not file this suit until August 2014, far more

than two years later.

       Warner argues that the limitations period should be equitably tolled. State

limitations principles generally govern § 1983 claims, except in limited circumstances

where those principles contradict federal law or policy. Kach v. Hose, 589 F.3d 626, 639

                                              3
(3d Cir. 2009) (citations). The only state-law principle Warner potentially refers to is

Pennsylvania’s discovery rule, but it will not aid him as he clearly knew of his injury in

February 2008. See Lake v. Arnold, 232 F.3d 360, 367 (3d Cir. 2000) (citing Ayers v.

Morgan, 154 A.2d 788, 794 (Pa. 1959)).

       Warner argues for tolling pursuant to federal law, although there is no indication

of a conflict between pertinent Pennsylvania and federal tolling principles. See Kach,

589 F.3d at 639. Even assuming it applied, federal equitable tolling is generally

appropriate in only three scenarios: “(1) where a defendant actively misleads a plaintiff

with respect to her cause of action; (2) where the plaintiff has been prevented from

asserting her claim as a result of other extraordinary circumstances; or (3) where the

plaintiff asserts her claims in a timely manner but has done so in the wrong forum.” See

Lake, 232 F.3d at 370 n.9. Although Warner, a prisoner, claims he was placed in

restricted housing for five days and lost access to his legal materials in July 2014, Warner

has identified no “extraordinary circumstances” that prevented him from filing suit

during the two years after his claim accrued, and none of Warner’s allegations suggest

that the other tolling scenarios apply here. See id.

       In light of these significant deficiencies, the District Court correctly dismissed

Warner’s complaint as lacking any arguable legal basis. See Neitzke v. Williams, 490

U.S. 319, 325 (1989). Warner maintains, however, that he should have been permitted to

amend his complaint. A district court must permit amendment of a deficient complaint

unless amendment would be inequitable or futile. Grayson v. Mayview State Hospital,

                                              4
293 F.3d 103, 106 (3d Cir. 2002). Warner’s § 1983 claim was time-barred on its face,

and he has not pointed to any different or additional facts he could plead to remedy this

deficiency. Similarly, there is no reason to believe Warner can amend his complaint to

make Pietrini a state actor. The District Court did not abuse its discretion in denying

amendment as futile. See In re NAHC, Inc. Sec. Litig., 306 F.3d 1314, 1332 (3d Cir.

2002).2

       We conclude that the District Court did not err in dismissing Warner’s complaint

with prejudice under 28 U.S.C. § 1915(e)(2)(B)(i). We will summarily affirm the

judgment of the District Court.




2
  Although he invoked § 1983, Warner’s suit based on a work-related injury is possibly
cognizable as a claim under state law. However, there are no grounds here to support
federal jurisdiction over any potential state law claim. See 28 U.S.C. §§ 1332, 1367.
Moreover, contrary to Warner’s assertions, if his claim was based in state law,
supplemental jurisdiction would be unavailable because Warner brings no related cause
of action over which a federal district court would have original jurisdiction. See id.
§ 1367(a); e.g., Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 558 (2005).
                                             5
