BLD-034                                                  NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                  No. 10-3437
                                  ___________

                                 IVAN DAVIS,
                                                   Appellant

                                        v.

   THOMAS M. GAUBY, SR. (POLICE OFFICER); LINDA K. M. LUDGATE;
  KEVIN D. GILLESPIE (DISTRICT ATTORNEY); KEVIN M. BEALS (PUBLIC
         DEFENDER); COMMON PLEAS COURT BERKS COUNTY
                ____________________________________

                 On Appeal from the United States District Court
                    for the Eastern District of Pennsylvania
                         (D.C. Civil No. 2-10-cv-03136)
                   District Judge: Honorable Stewart Dalzell
                  ____________________________________

      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
                               November 12, 2010

      Before: SLOVITER, JORDAN and GREENAWAY, JR., Circuit Judges

                       (Opinion filed: November 30, 2010)
                                    _________

                                   OPINION
                                   _________

PER CURIAM
        Ivan Davis, a state prisoner proceeding pro se, appeals from an order of the

District Court that denied his motion for counsel and sua sponte dismissed his suit. We

agree with the decision of the District Court and will summarily affirm.

        Davis filed a 42 U.S.C. § 1983 action on June 20, 2010. His claims, woven

through myriad District Court filings, appear to charge the defendants—mostly parties

involved in his criminal conviction—with numerous constitutional violations sounding

under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.

He averred that his ten-year sentence, as sought by District Attorney Kevin D. Gillespie

and imposed by Judge Linda Ludgate, was “cruel and unusual punishment” in light of

errors allegedly committed at trial, which included a decision to proceed with an all-white

jury and a failure by the District Attorney to sign the charging instrument. He accused his

public defender, Kevin M. Beals, of ineffectiveness for failing to ask for a change of

venue and failing to exercise zeal in his representation; claimed that officer Thomas M.

Gauby, Sr., had failed to investigate or take a statement in an aggravated assault case

stemming from events occurring in September, 2002, which apparently blocked Davis

from “press[ing] charges” on the persons who assaulted him 1 ; and charged the Berks

County prison with “illegal[ly]” confining him in its restricted housing unit. By motion

        1
1.
      Davis seems to refer to ground covered by this Court in a prior case of his, during
     which he challenged the alleged use of excessive force against him by three
     correctional officers. See Davis v. Berks County, 351 Fed. Appx. 640, 641 (3d Cir.
     2009); see also Mot. to Proceed In Forma Pauperis (D.C. Dkt. #003) 2. However,
     these references, like the rest of his complaint and accompanying materials, are vague.


                                              2
filed July 26, 2010, Davis asked for copies of the transcripts from his criminal trial and

renewed his request for appointment of counsel.

        By order entered August 2, 2010, the District Court granted Davis’s motion to

proceed in forma pauperis, denied his motion for appointment of counsel, and dismissed

his claims without prejudice under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1) for

failing to state a claim upon which relief could be granted. Specifically, the District

Court found that the majority of Davis’s allegations attacked the circumstances

surrounding his trial and sentencing, and thus should have been brought in a habeas

petition under 28 U.S.C. § 2254. It also noted that Davis had a habeas petition then

pending in District Court. 2 The rest of his claims, which related to incidents from 2002

or 2003, were barred as untimely.

        Davis filed several motions in the wake of the August 2 order. On August 3, 2010,

Davis filed a “Motion for Appeal Decision,” which the District Court construed as a

notice of appeal.3 The next day, he filed a timely motion for reconsideration, which the

court denied on August 10, 2010. On August 16, Davis filed an untitled document in

which he repeated several of his claims and renewed his request for an attorney; the




        2
1.
      This petition was denied on August 4, 2010, and Davis has not pursued appellate
     relief in that action. See generally Davis v. Beard, No. 5:09-cv-05078 (E.D. Pa.).
        3
1.
     District Court docket entries #009 and #011 both reflect the same “Motion for Appeal
     Decision” filed on August 3.

                                              3
District Court interpreted this document as another motion for reconsideration under Fed.

R. Civ. P. 59(e) and denied it on September 10, 2010.

        We have jurisdiction under 22 U.S.C. § 1291. See Deutsch v. United States, 67

F.3d 1080, 1083 (3d Cir. 1995) (dismissal under § 1915(e) without prejudice is

appealable because “an in forma pauperis plaintiff must be afforded appellate review of a

determination that he is required to pay all or a portion of the court costs and filing fees to

file a claim . . . because his complaint is frivolous”). This appeal ripened on September

10, 2010, upon the District Court’s denial of Davis’ motion for reconsideration. See Fed.

R. App. P. 4(a)(4)(B)(i); Carrascosa v. McGuire, 520 F.3d 249, 253 (3d Cir. 2008) (“[A]

notice of appeal filed before the disposition of . . . a motion for reconsideration will

become effective upon entry of the order disposing of the motion.”). As Davis did not

file a new or amended notice of appeal, as is required by Fed. R. App. P. 4(a)(4)(B)(ii),

we will not address the propriety of the District Court’s denial of the motions for

reconsideration. 4 See United States v. McGlory, 202 F.3d 664, 668 (3d Cir. 2000).

         Our review of a District Court’s sua sponte dismissal for failure to state a claim is

plenary, requiring us to draw all reasonable inferences therefrom in the plaintiff’s favor.

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

judgment of the District Court if the appeal does not present substantial questions, see

LAR 27.4; I.O.P. 10.6; United States v. Baptiste, 223 F.3d 188, 190 n.3 (3d Cir. 2000),

        4
1.
     Davis has continued to file motions in the District Court. Their disposition in the
     District Court is not currently before us.

                                               4
and may do so on any basis supported by the record, see Tourscher v. McCullough, 184

F.3d 236, 240 (3d Cir. 1999). We review a denial of a motion for appointment of counsel

for abuse of discretion. Parham v. Johnson, 126 F.3d 454, 457 (3d Cir. 1997); Tabron v.

Grace, 6 F.3d 147, 155 n.4 (3d Cir. 1993).

       We agree with the District Court that the majority of Davis’s allegations involve

matters inappropriate for disposition under 42 U.S.C. § 1983. It is well established that

“habeas corpus is the appropriate remedy for state prisoners attacking the validity of the

fact or length of their confinement.” Preiser v. Rodriguez, 411 U.S. 475, 490 (1973).

Challenges to matters within the core of habeas, “however denominated and regardless of

the relief sought, must be brought by way of a habeas corpus petition.” Torres v. Fauver,

292 F.3d 141, 143 (3d Cir. 2002) (emphasis added). The portions of Davis’s complaint

that allege malfeasance by the prosecutor and trial judge, charge his attorney with

constitutionally inadequate representation, and challenge his sentence fall squarely within

Preiser and cannot be brought under § 1983.

       That leaves Davis’s vague and unspecific allegations of assault, abuse, and

obstruction. We agree that most of these claims, which appear to date from 2002 and

2003, are barred by the statute of limitations. See Pa. Cons. Stat. § 5524 (providing a

two-year limitations period for personal injury actions); Garvin v. City of Philadelphia,

354 F.3d 215, 220 (3d Cir. 2003) (claims under § 1983 are governed by state time

limitations on personal-injury actions). The injuries he alleges are of the sort that would

have been apparent to him at the time they were committed. See Sameric Corp. v. City of

                                              5
Philadelphia, 142 F.3d 582, 599 (3d Cir. 1998) (“A section 1983 cause of action accrues

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

based.”). Although the statute of limitations is an affirmative defense, sua sponte

dismissal is appropriate when “the defense is obvious from the face of the complaint and

no further factual record is required to be developed.” Fogle v. Pierson, 435 F.3d 1252,

1258 (10th Cir. 2006) (citations omitted); Eriline Co. S.A. v. Johnson, 440 F.3d 648,

655–56 (4th Cir. 2006). To the extent that Davis is claiming that his current placement in

the Restricted Housing Unit violates his right of access to the courts, he has not pled the

“actual injury” required to sustain the claim, see Oliver v. Fauver, 118 F.3d 175, 177 (3d

Cir. 1997); to the extent that he alleges that his segregation amounts to an Eighth

Amendment violation, he has not shown deprivation of “minimal civilized measure of

life’s necessities.” Wilson v. Seiter, 501 U.S. 294, 298 (1991) (quoting Rhodes v.

Chapman, 452 U.S. 337, 347 (1981)); Tillman v. Lebanon County Correctional Facility,

221 F.3d 410, 417–18 (3d Cir. 2000). Accordingly, we agree with the District Court that

Davis has failed to state a claim upon which relief could be granted.5

       Ordinarily, a District Court should not sua sponte dismiss a complaint pursuant to

28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim without providing the plaintiff an

opportunity to amend his complaint. As it appears that amendment would be futile, we

       5
1.
        As the complaint has no legal merit, the District Court did not abuse its discretion
in declining to appoint an attorney to represent Davis. See Montgomery v. Pinchak, 294
F.3d 492, 499 (3d Cir. 2002) (establishing “arguable merit in fact and law” as threshold
for appointment of counsel under § 1915).

                                              6
conclude that the District Court did not err in declining to afford Davis leave to amend.

See Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002); see also Garvin,

354 F.3d at 222 (“[A]ny amendment of [the] complaint would have been futile because

the amended complaint could not have withstood a motion to dismiss on the basis of the

statute of limitations.”).

       As the appeal presents no substantial issues, we will summarily affirm the

judgment of the District Court. To the extent that the two motions filed by Davis in this

Court, styled as a “Motion for Reviewing Lower Court Decision on Action 10-3165” and

“Motion to Support My Argument,” request additional relief, they are denied. Davis’s

motion for appointment of counsel is also denied.




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