                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-15-2008

Fullman v. PA Dept Corr
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3967




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DLD-115                                                     NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              ___________

                                   No. 07-3967
                                   ___________

                              ANDREW FULLMAN,
                                                       Appellant

                                         v.

PENNSYLVANIA DEPARTMENT OF CORRECTIONS; STATE CORRECTIONAL
 INSTITUTION AT SMITHFIELD; J.C. BLAIR MEMORIAL HOSPITAL; DAVID
                           RUSSO, M.D.
               ____________________________________

                  On Appeal from the United States District Court
                       for the Middle District of Pennsylvania
                            (D.C. Civil No. 07-cv-00079)
                  District Judge: Honorable James F. McClure, 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
                                 January 30, 2008

            Before: BARRY, CHAGARES and COWEN, Circuit Judges

                         Opinion filed: February 15, 2008
                                    _________

                                     OPINION




PER CURIAM

     Andrew Fullman, a Pennsylvania resident, appeals from an order of the United
States District Court for the Middle District of Pennsylvania granting the defendants’

motion to dismiss. For the following reasons, we will dismiss Fullman’s appeal.

       On January 16, 2007, Fullman, proceeding pro se, filed a civil rights action under

42 U.S.C. § 1983. In an amended complaint, Fullman named four defendants: (1)

Pennsylvania Department of Corrections; (2) State Correctional Institution at Smithfield,

Huntingdon, Pennsylvania;1 (3) J.C. Blair Memorial Hospital; and (4) David Russo, M.D.

Soon thereafter, the district court dismissed the complaint for failure to state a claim upon

which relief could be granted. See 28 U.S.C. § 1915(e)(2)(B). Specifically, the district

court held that Fullman had failed to state a claim against Dr. Russo and J.C. Blair

Hospital because neither acted under color of state law and against Pennsylvania DOC

and SCI-Smithfied because neither is a person subject to suit under § 1983.

       On March 2, 2007, pursuant to a motion for reconsideration filed by Fullman, the

district court vacated, in part, its earlier decision and reinstated Fullman’s Eighth

Amendment claim against Dr. Russo. Dr. Russo then filed an answer to the complaint,

reciting numerous “affirmative defenses,” including failure to state a claim and statute of

limitations. He also followed with a motion for judgment on the pleadings, pursuant to

Federal Rule of Civil Procedure 12(c), maintaining that Fullman’s claims were

time-barred. In an order entered on September 18, 2007, the district court granted the




       1
        Fullman had been an inmate at SCI-Smithfield, but was released prior to filing
his complaint.

                                              -2-
motion for judgment on the pleadings and dismissed Fullman’s complaint. The district

court noted that Dr. Russo had provided allegedly faulty medical treatment to Fullman in

1994 and 1995 when Fullman was an inmate at SCI-Smithfield, and that Fullman’s

complaint was lodged long after the applicable statute of limitations had passed. Fullman

filed a motion for reconsideration which the district court denied. This timely appeal

followed.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review of

the dismissal of a complaint under Federal Rule of Civil Procedure 12(c). See Leamer v.

Fauver, 288 F.3d 532, 535 (3d Cir. 2002); see also Green v. Fund Asset Mgmt., 245 F.3d

214, 220 (3d Cir. 2001). As with a Rule 12(b)(6) motion, we must “view the facts

presented in the pleadings and the inferences to be drawn therefrom in the light most

favorable to the non-moving party.” Id. at 220. An appellant may prosecute his appeal

without prepayment of the fees under 28 U.S.C. § 1915(a)(1), but we must dismiss the

appeal if we determine that it “lacks an arguable basis either in law or fact.” See Neitzke

v. Williams, 490 U.S. 319, 325 (1989); see also 28 U.S.C. § 1915(e)(2)(B)(i).

       We agree with the district court’s analysis regarding the timeliness of Fullman’s

claims. A complaint may properly be dismissed for failure to state a claim on statute of

limitations grounds if the untimeliness of the complaint is apparent on its face. See

Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.1 (3d Cir. 1994).

While 42 U.S.C. § 1983 does not contain a statute of limitations period, “federal courts



                                            -3-
must look to the statute of limitations governing analogous state causes of actions.”

Urrutia v. Harrisburg County Police Dept., 91 F.3d 451, 457 n.9 (3d Cir. 1996). Here, as

the district court noted, the applicable statute of limitations was that governing personal

injury claims in Pennsylvania. See Wallace v. Kato, 127 S. Ct. 1091, 1094 (2007).

Therefore, Fullman had two years from the time his cause of action accrued in which to

file his complaint. See 42 Pa. Const. Stat. Ann. § 5524(2). Although state law

determines the limitations period, the accrual date of a § 1983 claim is solely a question

of federal law. The limitations period for purposes of § 1983 claims begins to run “from

the time when the plaintiff knows or has reason to know of the injury which is the basis of

the section 1983 action.” Genty v. Resolution Trust Corp., 937 F.2d 899, 919 (3d Cir.

1991). Here, Fullman knew, or had reason to know, of his alleged mistreatment when it

occurred. The alleged conduct which serves as a basis for Fullman’s claims plainly

occurred in 1994 and 1995 and Fullman, in fact, filed a state court medical malpractice

case in 1996 (closed in October 2004) based on this conduct. His current complaint,

however, was not filed until January of 2007, and we find no basis on this record to

invoke the doctrine of equitable tolling to save the complaint from dismissal for

untimeliness.2



       2
         Fullman’s claims against the other, previously dismissed, defendants are also
time-barred because he failed to show that any of these parties engaged in misconduct
within two years prior to the date he commenced his current suit. Moreover, aside from
the timeliness issue, it is well established that liability in a § 1983 action must be
predicated upon personal involvement and not on the basis of respondeat superior. See

                                             -4-
       The district court properly dismissed Fullman’s complaint pursuant to Federal Rule

of Civil Procedure 12(c). Having found no legal merit to this appeal, we will dismiss it

pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).




                                            /s/ Maryanne Trump Barry
                                            Circuit Judge




Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citing Parratt v. Taylor, 451
U.S. 527, 537 n.3 (1981)). Further, to the extent that Fullman sought to impose liability
on non-medical prison officers without showing that they had actual knowledge or a
reason to believe that doctors were mistreating him, his claims also failed. See Spruill v.
Gillis, 372 F.3d 218, 236 (3d Cir. 2004).


                                             -5-
