                                                        NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                          ____________

                              No. 09-3613
                             ____________

                             HAKIM BOND,
                                       Appellant

                                   v.

           VISIONQUEST; VISIONQUEST NATIONAL DIRECTOR;
    MAJOR SMITH, UNIT DIRECTOR, COUNSELOR AND MEDICAL STAFF;
  MR. MCGLAUGHLIN, ALL OF VISIONQUEST; THE CLARION HOSPITAL; THE
 TREATMENT TEAM; DOCTOR PETER MEYER; THE CHILDRENS HOSPITAL OF
     PHILADELPHIA; THE CITY OF PHILADELPHIA; THE PHILADELPHIA
     DEPARTMENT OF HUMAN SERVICES DIRECTOR; THE DIRECTOR OF
    THE YOUTH STUDY CENTER; THE PHYSICIAN AND MEDICAL STAFF,
 TO INCLUDE NURSES AND OTHER THERAPIST OR THE TREATMENT TEAM;
THE DIRECTOR OF COMMUNITY BEHAVIORAL HEALTH; AMANDA LATSHAW;
      SABRINA BACKSTONE, OF COMMUNITY BEHAVIORAL HEALTH;
     THE DIRECTOR; DR. JEROME VANCE; MR. DAVE ASAY, THERAPIST;
       MR. DAVE GUYMAN, SUPERVISING THERAPIST; DR. THOMAS;
            THE BENCHMARK BEHAVIORAL HEALTHSYSTEMS
                             ____________

        APPEAL FROM THE UNITED STATES DISTRICT COURT
          FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                       (D.C. Civil No. 08-cv-04527)
              District Judge: Honorable C. Darnell Jones, II
                              ____________

               Submitted Under Third Circuit LAR 34.1(a)
                           January 11, 2011
                            ____________

        Before: SCIRICA, BARRY and VANASKIE, Circuit Judges

                    (Opinion Filed: February 7, 2011)
                                   1
                                      ____________

                                        OPINION
                                      ____________



BARRY, Circuit Judge

       Hakim Bond appeals from an order of the District Court dismissing his complaint

as time-barred and vacating a prior order to appoint counsel. For the reasons stated

below, we will affirm.

                                      I.Background

       Because we write solely for the benefit of the parties, we will only briefly recite

the facts. Bond brought claims under 42 U.S.C. § 1983, as well as various state-law

causes of action, alleging, among other things, that he was misdiagnosed, subjected to

racism, and in many other ways severely mistreated while he was a minor under state

custody and supervision. Bond named as defendants a host of state agencies, private

institutions, and individuals. To name just a few, the defendants included VisionQuest

National, Ltd. (“VisionQuest”), which Bond described as a “national corporate [juvenile]

delinquent facility [which] utilizes extreme boot camp measures, and [which] imposes

Indian culture and practices on youth.” App. at 23 ¶ 5; Clarion Hospital, where Bond

was treated; and the City of Philadelphia.

In March 2006, Bond, along with his father, Reginald Carter, filed a pro se complaint in

the Western District of Pennsylvania, alleging essentially the same facts as

                                             2
alleged here. On October 23, 2006, Bond filed a motion to withdraw the complaint,

noting that Pennsylvania‟s statute of limitations permitted him to file a civil action until

September 14, 2008, two years after his eighteenth birthday, and that Carter hoped to

“gather the proper legal help” to pursue the case. Id. at 187. The complaint was

dismissed without prejudice on January 16, 2007.

       On September 17, 2008, Bond commenced the present action by filing a motion to

proceed in forma pauperis (“IFP”). The motion was dated September 12, 2008, and date-

stamped received by the District Court on September 17, 2008. Bond listed his address

as what appears to be a private residence in Philadelphia. Bond‟s proposed complaint

was attached to the IFP motion, and was dated September 12, 2008. The complaint also

listed the same residential address in Philadelphia and stated, in the first line, that Bond

“is a resident of Philadelphia, Pennsylvania.” App. at 22. Significantly, attached as an

exhibit to the complaint was a letter from Carter to Bond‟s former state-appointed

attorneys dated September 16, 2008, and marked in handwriting, “Hand delivered

9/17/08.” Id. at 36. On September 25, 2008, the Court granted Bond‟s IFP motion and

ordered the complaint to be filed.

On December 12, 2008, Bond filed a motion for appointment of counsel, stating that

“Plaintiff is currently incarcerated and finds it nearly impossible and quite difficult to

work with his father . . . in pursuing this matter.” Id. at 70. Clarion Hospital opposed

Bond‟s motion, arguing that the complaint was untimely because it was filed after the


                                              3
two-year statute of limitations for such actions under 42 Pa. Cons. Stat. § 5524. Clarion

Hospital also asked the Court to dismiss the case in its entirety due to the statute of

limitations barrier. Bond filed a reply to Clarion Hospital‟s motion, stating that “plaintiff

believes that his being late in this filing by a couple of days is forgivable, and ask [sic]

that the court makes an exception in this matter based on the need for fairness, justice,

and the fact that he and his father sought to bring this matter before the court, not being

ab[]le to obtain counsel . . . .” Id. at 100.

       On February 6, 2009, the District Court granted Bond‟s motion for appointment of

counsel by referring the matter to the Prisoner Civil Rights Panel for the Eastern District

of Pennsylvania, which would seek counsel for Bond. The Court also placed Bond‟s case

on the “suspense” list. VisionQuest filed a motion to dismiss on February 9, 2009,

claiming that the action was barred by the statute of limitations, which ran on September

14, 2008, Bond‟s twentieth birthday. The City of Philadelphia filed a similar motion on

March 18, 2009.

On August 7, 2009, the District Court removed the case from suspense, vacated its prior

order granting Bond‟s motion for appointment of counsel, granted VisionQuest‟s and the

City of Philadelphia‟s motions to dismiss, dismissed all remaining motions as moot, and

dismissed Bond‟s claims against all defendants with prejudice. The Court stated that

Bond‟s complaint, filed September 17, 2008, was time-barred because the statute of

limitations ran on September 14, 2008. Id. at 6. It stated that Bond “was not a

                                                4
prisoner at the time when he filed his Complaint, thus the „prisoner mailbox rule‟ does

not apply.” Id. The Court noted that sometime after it referred the case to the Prisoner

Civil Rights Panel, the Panel “informed the Court that Plaintiff was no longer

incarcerated.” Id. Accordingly, Bond‟s case was ineligible for submission to the Panel

for referral to an attorney.

       On December 31, 2009, we granted Bond‟s motion for appointment of appellate

counsel, and directed appointed counsel to address: (1) whether the District Court

adequately addressed the factors set forth in Tabron v. Grace, 6 F.3d 147, 155-58 (3d Cir.

1993), in denying Bond‟s motion for appointment of counsel; (2) whether Bond was

incarcerated when he filed his complaint; and (3) whether the Court erred in dismissing

Bond‟s complaint without considering whether there was any basis for tolling. We also

directed counsel to include documents, including relevant mailing envelopes,

demonstrating when the Court received the complaint. Appellees have submitted as part

of the record a copy of a mailing envelope addressed to the Clerk of Court with a return

address for Bond, care of his father, listing the same residential Philadelphia address that

appeared on Bond‟s other documents. The envelope contains no postmark or postage,

which suggests that a third person, possibly Bond‟s father, hand-delivered the IFP motion

and complaint to the Court.



                                            II.Discussion1

                                              5
        We exercise de novo review over a district court‟s grant of a motion to dismiss.

Phillips v. County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008). We “must accept the

truth of all factual allegations in the complaint and must draw all reasonable inferences in

favor of the non-movant.” Revell v. Port Auth. of N.Y. and N.J., 598 F.3d 128, 134 (3d

Cir. 2010). We review a district court‟s decision declining to appoint counsel for abuse

of discretion. Montgomery v. Pinchak, 294 F.3d 492, 498 (3d Cir. 2002).

        Bond argues that that he was incarcerated when the IFP motion and complaint

were filed and, thus, that he was entitled to the benefit of the prisoner mailbox rule and

his September 17, 2008 filing was not time-barred. Bond‟s § 1983 and supplemental

state-law claims are governed by Pennsylvania‟s two-year statute of limitations for

personal injury claims. See Lake v. Arnold, 232 F.3d 360, 368 (3d Cir. 2000); 42 Pa.

Cons. Stat. § 5524. Because Bond was a minor during the events described in his

complaint, Pennsylvania‟s tolling statute permitted his complaint to be filed for two years

after his eighteenth birthday, 42 Pa. Cons. Stat. § 5533(b), in his case, until September

14, 2008. Because September 14, 2008 fell on a Sunday, Bond had until Monday,




1
    The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, and 1367. We

have jurisdiction pursuant to 28 U.S.C. § 1291.

                                              6
September 15, 2008 to file his complaint. See Fed. R. Civ. P. 6(a)(3).2

        The Supreme Court first articulated the prisoner mailbox rule in Houston v. Lack,

487 U.S. 266 (1988), where it found that a notice of appeal was timely filed at the time

that it was delivered to the prison authorities for forwarding to the court clerk. Id. at 276.

Other circuits, as well as district courts within the Third Circuit, have extended this rule

to pro se prisoner complaints. See, e.g., Richard v. Ray, 290 F.3d 810, 813 (6th Cir.

2002); Smith v. Carroll, 602 F. Supp. 2d 521, 526 n.7 (D. Del. 2009). So, too, will we for

purposes of this appeal.

        Bond argues that he was imprisoned when he filed his complaint. The District

Court, however, was unaware of this when it dismissed the complaint. In response to our

December 31, 2009 Order directing Bond‟s attorney to address whether Bond was

incarcerated at the time he filed his complaint, Bond filed a two-page document which

appears to show that he was released on bail from the Curran-Fromhold Correctional

Facility (“CFCF”) in Philadelphia on February 3, 2008, and re-admitted on February 8,

2008. He also points to his personal information on the Court‟s civil docket sheet, which

lists his address as the Philadelphia Industrial Correctional Center (“PICC”) and shows

his prisoner number. Neither of these documents, however, establishes that Bond was


2
    Certain appellees contend that Rule 6(a)(3) is not relevant to prisoners seeking to apply

the prisoner mailbox rule, but they concede, for purposes of this appeal, that Bond had

until September 15, 2008 to file his complaint.
                                              7
imprisoned at the time he filed his complaint. The two-page document showing his

intake at CFCF only establishes that he was imprisoned on February 8, 2008, not at the

time he filed the complaint in September 2008. Further, the address listed on the docket

sheet at the time of appeal only reflects his address at that time; it was not necessarily his

address in September 2008.

       But even assuming that Bond was incarcerated in September 2008, he is not

entitled to the prisoner mailbox rule because there was no way for the District Court to

have known that Bond was imprisoned. The addresses listed on Bond‟s complaint, his

IFP motion, and the mailing envelope containing the motion and complaint all listed what

appears to be a residential address. Nothing in the complaint or motion suggested that he

was imprisoned at the time of filing.

       Most damaging to Bond‟s argument is the letter attached to his complaint that was

dated September 16, 2008, and marked “hand delivered” on September 17, 2008. If these

dates are accurate, and there is no plausible reason to believe otherwise, then for Bond‟s

complaint to have been mailed from prison, the complaint could not have been placed

into the custody of prison officials for delivery to the District Court until, at the earliest,

September 17, 2008. It is unlikely that this is the case, since the complaint was filed on

that date. The more likely scenario, which is supported by the fact that the envelope

containing the complaint had no date stamp or postage, is that Bond gave the complaint

to a third party, possibly his father, to hand deliver to the clerk‟s office. In that case, he is

                                                8
not entitled to the prisoner mailbox rule. See Kapral v. United States, 166 F.3d 565, 567-

68 (3d Cir. 1999) (habeas motion filed by prisoner‟s attorney not entitled to prisoner

mailbox rule); Pearson v. Vaugh, 984 F. Supp. 315, 316-17 (E.D. Pa. 1997).

         Bond argues the applicability of a “presumption” that since his complaint is dated

September 12, 2008, it was delivered to prison authorities prior to September 15, 2008,

and, thus, complies with the prison mailbox rule. He cites to United States v. Rinaldi,

where we deemed a prisoner‟s notice of appeal as timely based on the date listed on the

notice of appeal, rather than the docketed date. 447 F.3d 192, 194 n.6 (3d Cir. 2006).

Bond‟s argument, however, ignores the Supreme Court‟s observation in Houston that

adopting a prisoner mailbox rule would not lead to disputes over the timing of a

prisoner‟s filing because “prison authorities . . . have well-developed procedures for

recording the date and time at which they receive papers for mailing and . . . can readily

dispute a prisoner‟s assertions that he delivered the paper on a different date.” 487 U.S.

at 275. Here, Bond provides no evidence—and does not even directly state—that he

provided the complaint to prison authorities to mail to the District Court.3


3
    We reject Bond‟s additional argument that the District Court erred by dismissing his

complaint as untimely without notice to him and without an opportunity to file a

response. First, Bond did respond to Clarion Hospital‟s motion stating that Bond‟s

claims were time-barred, and never mentioned that he was imprisoned at the time he filed

the complaint. Second, and more importantly, the provisions of 28 U.S.C. §§ 1915(e)(2)
                                              9
       We also reject Bond‟s argument that the District Court erred in vacating its order

appointing him counsel because it relied on an erroneous finding of fact as to his

imprisonment status and because it failed to consider the factors set forth in Tabron.

Even assuming that the Court relied on incorrect information, Bond cannot satisfy the test

for appointment of counsel. Tabron requires a district court to first determine whether a

case has some merit. Here, even though the Court did not mention Tabron or explicitly

apply its factors, it implicitly found that because Bond‟s complaint was time-barred, he

could not overcome that important threshold requirement. See, e.g., Gallicchio v.

Bonner, No. 10-405 (SRC)(MAS), 2010 WL 2348705, at *1-2 (D.N.J. June 9, 2010)

(denying appointment of pro bono counsel because petitioner‟s claims were time-barred).

Because the complaint was time-barred, error in relying on incorrect information about

whether or not Bond was imprisoned was harmless. It was appropriate for the Court to

vacate the order appointing counsel.


and 1915A instruct a court to dismiss an IFP case “at any time if the court determines that

. . . the action or appeal . . . fails to state a claim on which relief may be granted.” 28

U.S.C. § 1915(e)(2); id. § 1915A. The Court fairly believed that Bond‟s claim was time-

barred, and, thus, did not err in dismissing the case without holding an evidentiary

hearing on Bond‟s imprisonment status. A court cannot be expected to guess at the

reasons to apply a tolling doctrine when no facts in support of tolling have been provided

by the claimant, even in pro se cases.
                                              10
III.   Conclusion

We will affirm the order of the District Court.




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