                                                         NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT
                           ___________

                               No. 10-1645
                               ___________

                         JAMES A. PALUCH, JR.,
                                           Appellant

                                     v.

       *SECRETARY PENNSYLVANIA DEPARTMENT CORRECTIONS;
      JOHN S. SHAFFER; WILLIAM D. SPRENKLE; DONALD VAUGHN;
               FRANKLIN J. TENNIS; TIMOTHY S. RINGLER;
      ROBERT CALIK; KATHLEEN ZWIERZYNA; DENNIS P. DURANT;
      MICHAEL A. FARNAN; SHARON BURKS; KRISTEN P. REISINGER;
       MICHAEL P. WOLANIN; RANDY POLLOCK; JAMES L. GRACE;
          MELVIN S. LOCKETT; JOHN D. FISHER; ASHLEY SMITH;
   DANIEL BAIRD; RUSTY BILGER; ROBERT CRAMER; YVONNE BRIGGS;
SCI HUNTINGDON; PENNSYLVANIA DEPARTMENT OF CORRECTIONS, sued in
                    their individual and official capacities

                  *(Pursuant to Rule 43(c), Fed. R. App. P.)
                 ____________________________________

               On Appeal from the United States District Court
                   for the Middle District of Pennsylvania
                    (D.C. Civil Action No. 09-cv-01522)
                District Judge: Honorable Sylvia H. Rambo
                ____________________________________

               Submitted Pursuant to Third Circuit LAR 34.1(a)
                              August 1, 2011

    Before: FUENTES, GREENAWAY, JR., and GREENBERG, Circuit Judges

                      (Opinion filed: August 19, 2011)
                                     1
                                      ___________

                                       OPINION
                                      ___________

PER CURIAM

       Paluch, a state prisoner proceeding pro se, appeals from the District Court orders

dismissing his complaint under 28 U.S.C. § 1915(e)(2)(B) and denying his motion to

reconsider. For the reasons that follow, we will affirm.

                                             I

       In September 2004, Paluch, then a prisoner at SCI-Huntingdon in Pennsylvania,

was assaulted by his cellmate, Roger Smith, allegedly at the instigation of corrections

officer John Dawson. Following the assault, Paluch filed a grievance and requested

security camera footage related to the assault. The grievance was denied and Paluch

unsuccessfully appealed that denial up to the Department of Corrections (“DOC”)

Secretary’s Office of Inmate Grievances and Appeals. After failing to obtain relief

through the administrative grievance process, Paluch filed in the Middle District a lawsuit

against Smith, Dawson, and several other corrections officers. See Paluch v. Dawson,

M.D. Pa. Civ. No. 06-cv-01751. During the course of those proceedings, Paluch learned

that the surveillance footage he had requested had been copied over. In August 2009,

before the Dawson trial commenced, Paluch filed a second action under 42 U.S.C.

§ 1983, alleging that various DOC and SCI-Huntingdon employees violated his rights

under the Americans with Disabilities Act, the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the Constitution, and various state tort laws. The second complaint is the

subject of the instant appeal.

       Paluch’s second complaint, which included five counts, alleged that: (1) the DOC

violated his rights by failing to establish policies and procedures to protect him, as an

epileptic inmate, from assault; (2) corrections officers at SCI-Huntingdon failed to protect

Paluch from further abuse because they did not file written reports about the assault by

Smith to their superiors; (3) corrections officers at SCI-Huntingdon violated his rights by

failing to make video recordings of the assault scene with a handheld camera for use as

evidence in any future litigation; (4) DOC and SCI-Huntingdon officials violated his

rights by failing to establish policies and procedures for preservation of video

surveillance recordings for foreseeable litigation; and (5) corrections officer John Fisher

violated Paluch’s rights by failing to preserve the video surveillance footage. In Count 5,

Paluch also alleged that Fisher violated his rights by failing to conduct an investigation

following Paluch’s filing of a formal grievance.

       In an order entered November 24, 2009, the District Court dismissed Paluch’s

complaint under 28 U.S.C. § 1915(e)(2)(B), reasoning that Counts 1-3 were time-barred,

and that Counts 4 and 5 were meritless because Paluch did not allege that he suffered any

harm from the destruction of the video tape. The District Court did not address Paluch’s

claim that Fisher failed to conduct an investigation.

       Twenty-seven days later, on December 21, 2009, Paluch filed a motion under

Middle District Local Rule 7.10, styled as a “motion to reconsider,” raising several
challenges to the propriety of the District Court’s order dismissing his complaint.

Notably, although the Clerk’s Office deemed the motion filed on December 23, Paluch

noted on the envelope that his motion was submitted “Per P[rison] M[ailbox] R[ule]” on

December 21. The envelope was postmarked December 22, 2009. Relying on Local

Rule 7.10, the District Court denied the motion as untimely. Paluch filed a notice of

appeal, which was timely as to the order denying his motion to reconsider.

                                             II

       We have jurisdiction pursuant to 28 U.S.C. § 1291. At the outset, we must address

the scope of our jurisdiction, which is potentially limited by the District Court’s dismissal

of Paluch’s motion to reconsider as untimely. We note first that, although Paluch’s pro

se motion to reconsider cited only Middle District Local Rule 7.10, because the motion

was, in substance, an attack on the legal determination made by the District Court in

dismissing Paluch’s complaint, it also amounted to a motion to alter or amend the

judgment, which is governed by Federal Rule of Civil Procedure 59(e). See United

States v. Fiorelli, 337 F.3d 282, 288 (3d Cir. 2003); see also Smith v. Evans, 853 F.2d

155, 158 (3d Cir. 1988) (“[T]he function of the motion, not the caption, dictates which

Rule applies . . . .”). Federal Rule of Appellate Procedure 4(a)(4)(A)(iv) provides that a

timely motion for reconsideration under Rule 59(e) tolls the time to file a notice of

appeal. Thus, if Paluch’s motion to reconsider was, in fact, timely, we may review both

the denial of that motion and the order dismissing Paluch’s complaint under 28 U.S.C.

§ 1915(e)(2)(B). We conclude that Paluch’s motion to reconsider was timely filed.
       Until December 1, 2009, both Rule 59(e) and Local Rule 7.10 afforded a litigant

10 days following an order or judgment to file a motion to reconsider. Effective

December 1 -- after the District Court dismissed Paluch’s complaint, but before he sought

reconsideration -- the Rules were amended. Rule 59(e) was changed to impose a 28-day

time limit, whereas Local Rule 7.10 afforded only 14 days to file a motion to reconsider.

These changes give rise to two questions: Did the District Court appropriately apply the

amended rules to Paluch’s case? And did the District Court err in relying on the shorter

limitations period to dismiss Paluch’s complaint? We answer both questions in the

affirmative.

       As explained above, Rule 59 governed Paluch’s motion to reconsider. Generally,

when amended procedural rules take effect during the pendency of a case, the amended

rules will be given retroactive application to the maximum extent possible, unless doing

so would work injustice. See Freudensprung v. Offshore Technical Servs., Inc., 379 F.3d

327, 335 n.2 (5th Cir. 2004). In promulgating the 2009 amendments to the Federal Rules,

the Supreme Court ordered that “the [amendments] . . . shall govern in all proceedings

[commenced after December 1, 2009,] and, insofar as just and practicable, all

proceedings then pending.” Order of the United States Supreme Court Amending the

Federal Rules of Civil Procedure (March 26, 2009) (emphasis added). In applying

amended Local Rule 7.10, we understand the District Court to have concluded that it was

just and practicable to afford Paluch the additional time granted by the amended rule. In

turn, we conclude that it would have been equally just and practicable to give Paluch the
28 days prescribed by amended Rule 59(e).

       Next, we turn to the District Court’s application of Local Rule 7.10’s 14-day

limitations period. “District Courts are authorized to prescribe rules for the conduct of

court business so long as those rules are consistent with the Acts of Congress and the

Federal Rules of Civil Procedure.” Anchorage Assocs. v. V.I. Bd. of Tax Review, 922

F.2d 168, 173 (3d Cir. 1990); see also 28 U.S.C. § 2071(a); Fed. R. Civ. P. 83(a)(1).

Thus, a local rule that conflicts with an applicable federal rule is generally invalid. See In

re Paoli R.R. Yard PCB Litig., 221 F.3d 449, 459 (3d Cir. 2000). Because Paluch’s

motion to reconsider should have been subject to the 28-day limit in amended Rule 59(e),

amended Local Rule 7.10 did not apply to the extent that it cut short Paluch’s opportunity

to seek reconsideration under Rule 59(e).1

       Finally, we consider whether, applying amended Rule 59(e), Paluch’s motion was

timely. The District Court dismissed his complaint on November 24, 2009. His motion

thus had to be filed on or before December 22, 2009, to be timely. Because Paluch is a

prisoner, he receives the benefit of the “prison mailbox rule,” and his motion was deemed

filed at the time he delivered it to prison authorities for forwarding to the District Court.

See Houston v. Lack, 487 U.S. 266, 276 (1988). His motion was postmarked December

22, meaning that it was delivered to prison authorities on that date, at the latest, and was


   1
     We note that the 2010 amendment to Local Rule 7.10 avoids this problem by
   exempting from the 14-day time limit “a motion to alter or amend a judgment under
   Fed. R. Civ. P. 59.”
therefore timely. Thus, his motion to reconsider tolled the time to appeal, and we have

jurisdiction to review both the dismissal of his complaint and the denial of his motion to

reconsider.

                                             III

       We turn next to the merits of Paluch’s appeal. We exercise plenary review over

the District Court’s order dismissing his complaint. See Tourscher v. McCullough, 184

F.3d 236, 240 (3d Cir. 1999). We may affirm on any ground supported by the record.

See Hughes v. Long, 242 F.3d 121, 122 n.1 (3d Cir. 2001).

       The District Court held that Counts 1 through 3 of Paluch’s complaint were time-

barred.2 In § 1983 cases, federal courts apply the state personal injury statute of

limitations, which is two years in Pennsylvania. See Smith v. Holtz, 87 F.3d 108, 111 &

n.2 (3d Cir. 1996); 42 Pa. Cons. Stat. Ann. § 5524 (West 2004). “A [§] 1983 cause of

action accrues when the plaintiff knew or should have known of the injury upon which its

action is based.” Sameric Corp. of Del. v. City of Phila., 142 F.3d 582, 599 (3d Cir.

1998). Because exhaustion of prison administrative remedies is mandatory under the

Prison Litigation Reform Act, the statute of limitations applicable to § 1983 actions may


   2
     Although the statute of limitations applicable to § 1983 actions is an affirmative
   defense, which may be waived by the defendant, it is appropriate to dismiss sua
   sponte under § 1915(e)(2) a complaint whose untimeliness is apparent from the face
   of the record. See, e.g., Jones v. Bock, 549 U.S. 199, 215 (2007) (stating that if the
   allegations in 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”).
be tolled while a prisoner exhausts. See Brown v. Valoff, 422 F.3d 926, 942-43 (9th Cir.

2005); Johnson v. Rivera, 272 F.3d 519, 522 (7th Cir. 2001). In concluding that Counts 1

through 3 were time-barred, the District Court reasoned that all of those claims stemmed

from the alleged assault on September 9, 2004, which occurred nearly 5 years before he

filed his complaint, and that Paluch did not demonstrate a basis for tolling the statute of

limitations. We agree that Counts 1 through 3 accrued in September 2004. Although

Paluch’s complaint did not include any information that indicated tolling was warranted,

the record in the Dawson case, over which Judge Rambo also presided, demonstrates that

Paluch attempted to seek relief through the administrative process from September 10,

2004, through January 24, 2005, when his final appeal to the Secretary’s Office of Inmate

Grievances and Appeals was denied. See Paluch v. Dawson, M.D. Pa. Civ. No. 06-cv-

01751, Doc. No. 228, 42-49. Thus, the statute of limitations applicable to Counts 1

through 3 did not begin to run until January 2005. However, because Paluch did not file

his complaint within two years of that date, those claims were barred by the statute of

limitations.

       In Count 4 of his complaint, Paluch alleged that SCI-Huntingdon and DOC

officials failed to establish policies and procedures that allow for the preservation of

evidence for prisoners’ use in foreseeable litigation. The Department of Corrections’

Policy DC-ADM 804 provides a mechanism for inmates to file grievances regarding

problems they face while in prison, including abuse. Under DC-ADM 001, which details

the policies and procedures prison staff employ for assessing inmates’ allegations of
abuse, staff are required to preserve and submit as part of their investigative report, inter

alia, “any videos or photographs related to the alleged incident.” Pa. DOC DC-ADM 001

§ 1(C)(1)(c). Thus, it is clear that the DOC has policies in place designed to ensure that

relevant video evidence is preserved.

       Paluch alleged in Count 5 that, by failing to preserve the video surveillance

footage, Defendant Fisher unconstitutionally deprived Paluch of his ability to substantiate

his claims in the Dawson case. The thrust of Paluch’s claim is not entirely clear, though

his argument can be read as asserting a cause of action for Fisher’s alleged spoliation. To

that end, Paluch has pointed to no authority that allows for a freestanding spoliation

action under federal law and, to the extent that he sought to invoke the District Court’s

supplemental jurisdiction, Pennsylvania has not recognized an independent action for

spoliation. See Pyeritz v. Commonwealth, 956 A.2d 1075, 1082 (Pa. Commw. Ct. 2008),

allowance of appeal granted, 969 A.2d 1183 (Pa. 2009).3

       Paluch also alleged in Count 5 that, by failing to properly investigate Paluch’s

abuse claim, Fisher acted with deliberate indifference and failed to protect him.

Although the District Court did not address this claim, dismissal under § 1915(e) was

appropriate because there is no apparent obligation for prison officials to investigate

prison grievances. See Inmates of Attica Corr. Facility v. Rockefeller, 477 F.2d 375, 382


   3
     We note that, although the question whether Pennsylvania recognizes a tort claim
   for spoliation is presently before the Pennsylvania Supreme Court in Pyeritz, no such
   cause of action was recognized at any time during Paluch’s proceedings in the District
   Court or during the course of this appeal.
(2d Cir. 1973).

       On appeal, Paluch argues that the District Court erred in denying his motion for

reconsideration. We review the denial of a motion to reconsider for abuse of discretion.

See Caver v. City of Trenton, 420 F.3d 243, 258 (3d Cir. 2005). To prevail on a motion

for reconsideration, a litigant must demonstrate: “(1) an intervening change in the

controlling law; (2) the availability of new evidence . . .; or (3) the need to correct a clear

error of law or fact or to prevent manifest injustice.” Max’s Seafood Café ex rel. Lou-

Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). In his motion to reconsider,

Paluch raised several arguments challenging the District Court’s analysis of his claims.

For the reasons discussed above, dismissal was appropriate and his arguments are

unpersuasive. Moreover, there is no merit to Paluch’s argument in his motion for

reconsideration, which he reiterates on appeal, that Judge Rambo rendered unfavorable

decisions because she was biased against him. Adverse rulings, without more, are

insufficient to warrant recusal. See Liteky v. United States, 510 U.S. 540, 555 (1994).

Paluch has provided no reason, other than his own dissatisfaction with Judge Rambo’s

rulings, to conclude that he was treated unfairly.4

       Accordingly, we will affirm. Paluch’s motion for leave to conduct an evidentiary

hearing is denied.




   4
     For the same reason, we are not concerned by the fact that Paluch has since filed a
   lawsuit against Judge Rambo or that she has recused in the Dawson case.
