DLD-166                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 15-3868
                                       ___________

                                     JAMIL GANDY,
                                              Appellant

                                             v.

     SUPERINTENDENT GRATERFORD SCI; DISTRICT ATTORNEY OFFICE
                         DELAWARE, ET. AL.
                ____________________________________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                            (D.C. Civil No. 2-13-cv-04032)
                          District Judge Lawrence F. Stengel
                      ____________________________________

       Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
         or Summary Action Under Third Circuit L.A.R. 27.4 and I.O.P. 10.6
                                  March 3, 2016
      Before: CHAGARES, GREENAWAY, JR. and SLOVITER, Circuit Judges


                              (Opinion filed: April 6, 2016)
                                      _________

                                        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.
       Pro se appellant Jamil Gandy appeals from the judgment of the United States

District Court for the Eastern District of Pennsylvania in his § 1983 action. As the appeal

does not present a substantial question, we will summarily affirm the decision of the

District Court.

       Gandy initiated this § 1983 action in 2013 against Michael Wenerowicz,

Superintendent of SCI-Graterford, and the Delaware County District Attorney’s office,

alleging that these Defendants “refused to allow him to access biological evidence for the

purpose of forensic DNA testing” in connection with his 1985 first-degree murder

conviction in Delaware County. Gandy contends that the District Attorney’s office

destroyed the evidence in 1984, and acknowledges that he was aware of this alleged

destruction by 2006, when he filed a PCRA petition based on the trial Court’s failure to

preserve the DNA evidence. The allegations against Wenerowicz are not as clear, and

appear to be based solely on Wenerowicz’s putative status as Gandy’s “custodian” –

Gandy contends that Wenerowicz’s “involvement can be found based upon the custodian

of plaintiff’s personal as a result of the allegations set forth in the suit.”

       On November 2, 2015, the District Court granted Defendants’ respective motions

to dismiss, finding that Wenerowicz lacked sufficient personal involvement, and that

Gandy’s claim against the District Attorney’s office was time-barred. Gandy filed a

timely notice of appeal on November 24, 2015.




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                                              II.

       We review the District Court’s dismissal under Rule 12(b)(6) using the same test

that the District Court should have applied and ask whether it has “sufficient factual

matter; accepted as true; to state a claim to relief that is plausible on this face.” Fantone v.

Latini, 780 F.3d 184, 186-193 (3d Cir. 2015) (citing Ashcroft v. Iqbal; 556 U.S. 662 678

(2009)). We may summarily affirm the District Court where “it clearly appears that no

substantial question is presented or that subsequent precedent or a change in

circumstances warrants such action.” 3d Cir. I.O.P. 10.6 (2015).

       The District Court correctly dismissed Gandy’s § 1983 claim. As to Wenerowicz,

the only allegation of his personal involvement in this action is his putative status as

Gandy’s custodian. As the Court accurately observed, “[a] defendant in a civil rights

action must have personal involvement in the alleged wrong’ to be liable.” Sutton v.

Rasheed, 323 F.3d 236, 249 (3d Cir. 2003) (quoting Rode v. Dellarciprete, 845 F.3d

1195, 1207 (3d Cir. 1988)). To the extent Gandy’s claim is based on Wenerowicz’s

status as the highest ranking official at SCI-Graterford, or his status as Gandy’s

custodian, this is not a viable theory of liability absent personal participation. See

Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009) (“Government officials may not be held

liable for the unconstitutional conduct of their subordinates under a theory of respondeat

superior.”).

       As to the District Attorney’s office, a limitations defense may be raised in a

12(b)(6) motion only when “the time alleged in the statement of a claim shows that the

cause of action has not been brought within the statute of limitations.” Schmidt v. Skolas,




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770 F.3d 241, 249 (3d Cir. 2014) (internal quotations omitted). Here, the District Court

accurately observed that Gandy’s claim is subject to Pennsylvania’s two-year limitation

period on personal injury actions. See Bougher v. Univ. of Pittsburgh, 882 F.2d 74, 78

(3d Cir. 1989) (citing Wilson v. Garcia, 471 U.S. 261, 280 (1985)) (“[A]s a matter of

federal law, all section 1983 claims are subject to the state statute of limitations for

personal injury actions.”). Gandy acknowledges that he discovered his injury – the

alleged destruction of the DNA evidence – no later than 2006, when he filed a PCRA

petition based on this claim. He filed this action some seven years later, well beyond the

two-year limitation period.

       Accordingly, we will affirm the decision of the District Court.1




1
  In his Argument in Support of Appeal, Gandy addresses the propriety of his murder
conviction and the alleged misconduct of the District Attorney’s office in securing that
conviction. He does not, however, address the propriety of District Court’s order as it
relates to the limitations issue or Wenerowicz’s lack of personal involvement in this
action.



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