CLD-155                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 12-3921
                                      ___________

                               MANUEL D. PEGUERO,
                                            Appellant

                                            v.

               MR. MEYER, Unicor Correctional Office; UNICOR INC.
                    ____________________________________

                    On Appeal from the United States District Court
                             for the District of New Jersey
                            (D.C. Civil No. 1:11-cv-01476)
                      District Judge: Honorable Renée M. Bumb
                     ____________________________________

         Submitted for Possible Dismissal Due to a Jurisdictional Defect and 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
                                   March 14, 2013

        Before: RENDELL, JORDAN and VAN ANTWERPEN, Circuit Judges

                              (Opinion filed: April 2, 2013)
                                      _________

                                       OPINION
                                       _________

PER CURIAM

      Manuel Peguero, a federal prisoner, appeals the dismissal of his complaint by the

United States District Court for the District of New Jersey. Because the appeal does not
present a substantial question, we will summarily affirm the judgment of the District

Court. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

                                               I.

       In 2005, Peguero allegedly experienced a work-related injury while working at the

Unicor Recycling facility at FCI Fort Dix. Specifically, Peguero asserts that he worked

on a bailer machine and that other inmates were not prevented from breaking equipment

located in the room next to the bailer. According to him, the broken equipment emitted

chemical fumes that caused damage to his eyes. After he was transferred to USP

Lewisburg, he was diagnosed with glaucoma. He alleges that he did not have vision

problems before his exposure to the fumes, and he asserts that he requires future surgery

as well as treatment and medication for the rest of his life. After events that are not

relevant here, the District Court reopened Peguero‟s case but dismissed his complaint

without prejudice. Peguero then filed this appeal.

                                             II.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 12911 and exercise

plenary review over the District Court‟s dismissal order. See Allah v. Seiverling, 229


1
  Generally, when a district court has dismissed a complaint without prejudice, the
dismissal is not appealable under 28 U.S.C. § 1291 unless the litigant cannot cure the
defect or where the litigant declares an intention to stand on the complaint, whereupon
the district court‟s order becomes final. Borelli v. City of Reading, 532 F.2d 950, 951-52
(3d Cir. 1976) (per curiam). Although the District Court did not explicitly consider the
statute of limitations, as discussed in the text, Peguero‟s Eighth Amendment claim is
time-barred, making the District Court‟s without-prejudice dismissal final. See Fassett v.
Delta Kappa Epsilon, 807 F.2d 1150, 1157 (3d Cir. 1986). The District Court also
                                               2
F.3d 220, 223 (3d Cir. 2000). To survive dismissal, “a complaint must contain sufficient

factual matter, accepted as true, to „state a claim to relief that is plausible on its face.‟”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 570 (2007)). We may summarily affirm on any basis supported by the

record. Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam).

                                               III.

       “A Bivens action, which is the federal equivalent of the § 1983 cause of action

against state actors, will lie where the defendant has violated the plaintiff‟s rights under

color of federal law.” Brown v. Philip Morris Inc., 250 F.3d 789, 800 (3d Cir. 2001). A

Bivens claim, like a claim pursuant to § 1983, is “characterized as a personal-injury claim

and thus is governed by the applicable state‟s statute of limitations for personal-injury

claims.” Dique v. N.J. State Police, 603 F.3d 181, 185 (3d Cir. 2010) (citing Cito v.

Bridgewater Twp. Police Dep‟t, 892 F.2d 23, 25 (3d Cir. 1989); see also Wilson v.

Garcia, 471 U.S. 261, 276 (1985). In New Jersey, personal injury claims are subject to a

two-year statute of limitations. See Dique, 603 F.3d at 185; see also N.J. Stat. Ann. §

2A:14-2. Accordingly, Peguero‟s Eighth Amendment claim is subject to this two-year

period.




dismissed Peguero‟s claim for compensation under the Inmate Accident Compensation
Act (“IACA”), 18 U.S.C. § 4126, without prejudice. Peguero is scheduled to be released
in February 2014 and cannot yet initiate his claim under IACA. See 28 C.F.R. §
301.303(a) (“No more than 45 days prior to the date of an inmate‟s release, but no less
than 15 days prior to this date, each inmate who feels that a residual physical impairment
                                                3
       While state law provides the applicable statute of limitations, federal law controls

when a Bivens claim accrues. Wallace v. Kato, 549 U.S. 384, 388 (2007). Accrual

occurs “when the plaintiff has a complete and present cause of action.” Id. (citations

omitted) (internal quotation marks omitted). Peguero‟s cause of action accrued in 2005,

when he was allegedly injured by the defendants‟ deliberate indifference to safety

procedures in the Unicor Recycling facility. See William A. Graham Co. v. Haughey,

646 F.3d 138, 150 (3d Cir. 2011) (discussing accrual). Therefore, the limitations period

expired approximately four years before Peguero filed his complaint in 2011.

       Furthermore, we see no reason to toll the statute of limitations. Unless

inconsistent with federal law, state law governs the issue of whether a limitations period

should be tolled. Wilson v. Garcia, 471 U.S. 261, 269 (1985), superseded on other

grounds by 28 U.S.C. § 1658; Dique, 603 F.3d at 185. In New Jersey, a statute of

limitations may be tolled “until the injured party discovers, or by exercise of reasonable

diligence and intelligence should have discovered, that he may have a basis for an

actionable claim.” Dique, 603 F.3d at 185 (internal quotation marks omitted). Here,

Peguero‟s own allegations reveal that he was aware of his claim when his injury occurred

in 2005. Perhaps Peguero could argue that he did not discover the basis for his claim

until he was diagnosed with glaucoma in 2007; however, even if this argument entitled

him to tolling, the limitations period would have expired in 2009, two years before



exists as a result of an industrial institution, or other work-related injury shall submit [the
appropriate form].”).
                                               4
Peguero filed his complaint. Accordingly, the District Court properly dismissed his

complaint for failure to state a claim.

                                           IV.

       For the foregoing reasons, no substantial question is presented and we will affirm

the judgment of the District Court.2 See 3d Cir. L.A.R 27.4; I.O.P. 10.6.




2
 The District Court did not provide Peguero leave to amend his complaint before
dismissing it. Nevertheless, we do not see how any amendment to his complaint would
save his Eighth Amendment claim from being time-barred. See Grayson v. Mayview
State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).
                                            5
