                                                NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                   ___________

                       No. 12-3396
                       ___________

                SHAWN SOUTHERLAND,
                            Appellant

                             v.

               COUNTY OF HUDSON;
OSCAR AVILES, Warden, Hudson County Correctional Facility;
    HUDSON COUNTY CORRECTIONAL FACILITY;
             GOVERNOR NEW JERSEY;
              GOVERNOR NEW YORK;
      HUDSON COUNTY DISTRICT ATTORNEY
       ____________________________________

       On Appeal from the United States District Court
                 for the District of New Jersey
            (D.C. Civil Action No. 2-10-cv-03563)
      District Judge: Honorable Dickinson R. Debevoise
         ____________________________________

       Submitted Pursuant to Third Circuit LAR 34.1(a)
                        May 8, 2013

   Before: RENDELL, FISHER and GARTH, Circuit Judges

                (Opinion filed: May 10, 2013)
                       ___________

                        OPINION
                       ___________
PER CURIAM

       Shawn Southerland, an inmate presently confined at East Jersey State Prison,

appeals from the District Court’s order sua sponte dismissing his pro se civil rights

complaint for failure to state a claim. For the reasons set forth below, we will affirm the

District Court’s order in part, vacate it in part, and remand for further proceedings.

                                              I.

       Because we write for the parties, we recount only the essential facts and

procedural history. Southerland, proceeding pro se and in forma pauperis, filed a

complaint pursuant to 42 U.S.C. § 1983 in the District Court, alleging that his civil rights

were violated by law enforcement officers during a 2007 investigation at his residence,

and by corrections officials during his pretrial detention at the Hudson County

Correctional Center (“HCCC”) between 2010 and 2011. The District Court sua sponte

dismissed Southerland’s complaint without prejudice for failure to state a claim pursuant

to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). Southerland timely appealed. 1




       1
         Southerland was initially notified that his appeal would be submitted to the Court
for possible dismissal under 28 U.S.C. § 1915(e)(2) or summary action under 3d Cir.
L.A.R. 27.4 and I.O.P. 10.6. However, a briefing schedule was later issued and the
parties were directed to specifically brief whether Southerland’s pretrial confinement
conditions at HCCC constituted punishment under the Due Process Clause of the
Fourteenth Amendment. See Bell v. Wolfish, 441 U.S. 520, 536-37 (1979). Southerland
timely filed a pro se informal brief. Appellees, whose participation below was preempted
by the District Court’s sua sponte dismissal of the complaint, did not file an appellate
brief.


                                              2
       We exercise jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the District

Court's sua sponte dismissal of Southerland’s complaint for failure to state a claim is

plenary. See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). Whether a complaint

should be dismissed under § 1915 because it fails to state a claim is assessed under the

same standard as a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Id. In order to

survive dismissal under that standard, “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 Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). In deciding whether the District Court’s dismissal of Southerland’s complaint

was proper, we “accept as true the factual allegations in the complaint and all reasonable

inferences that can be drawn therefrom.” Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996).

                                              III.

       We will affirm the District Court’s dismissal of Southerland’s claim that his civil

rights were violated when police officers entered the residence he shared with his former

girlfriend in 2007 to investigate her disappearance. 2 The District Court dismissed this

claim after concluding that it was untimely under the applicable two-year statute of

limitations. See Montgomery v. DeSimone, 159 F.3d 120, 126 & n.4 (3d. Cir. 1998);

Cito v. Bridgewater Township Police Dept., 892 F.2d 23, 25 (3d Cir. 1989). Ordinarily,

the statute of limitations is an affirmative defense which must be pleaded and is subject to

       2
         Southerland was later convicted in a New Jersey court of murdering his
girlfriend.


                                               3
waiver, see Chainey v. Street, 523 F.3d 200, 209 (3d Cir. 2008), but untimeliness may

justify sua sponte dismissal where “it is clear from the face of the complaint that there are

no meritorious tolling issues, or the Court has provided the plaintiff notice and an

opportunity to be heard.” Vasquez Arroyo v. Starks, 589 F.3d 1091, 1097 (3d Cir. 2009).

Our review of the complaint convinces us that the District Court correctly found that this

claim was clearly time-barred and that no meritorious tolling issues were present. We

will also affirm the District Court’s dismissal of Southerland’s related claim that Officer

George Ponik later provided false testimony regarding the 2007 investigation at an

evidentiary hearing, as we agree that Southerland’s complaint failed to set forth a

sufficient factual basis to support such a claim. See Iqbal, 556 U.S. at 678-79.

       With respect to Southerland’s pretrial detention at HCCC, he alleged that (1) his

confinement conditions in the C-5-East segregation cellblock were unconstitutional; and

(2) he was denied meaningful access to the courts due to an inadequate law library and

insufficient time to work on his criminal case. We will affirm the District Court’s

dismissal of Southerland’s access to the courts claim because we agree that his complaint

failed to connect the actions of any of the defendants to an actual injury. See Lewis v.




                                              4
Casey, 518 U.S. 343, 348-55 (1996); Reynolds v. Wagner, 128 F.3d 166, 183 (3d Cir.

1997) (requiring “evidence of actual or imminent interference with access to courts”). 3

       However, we will vacate the District Court’s dismissal of Southerland’s claim that

his confinement in the C-5-East segregation cellblock was unconstitutional. The District

Court reasoned that Southerland failed to state a claim on this issue because (1) he did not

have a liberty interest in his assignment to a particular security classification; (2) he did

not demonstrate that the confinement conditions created an atypical and significant

hardship; and (3) the placement of prisoners within the prison system is within the

discretion of prison administrators. We find the District Court’s analysis insufficient to

justify the sua sponte dismissal of this claim under §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).

       Constitutional challenges to the conditions of pretrial confinement are analyzed

under the Fourteenth Amendment’s Due Process Clause. See Hubbard v. Taylor, 399

F.3d 150, 158 n.13 (3d Cir. 2005). In Bell v. Wolfish, the Supreme Court held that

because a pretrial detainee has not been found guilty of any crime, he may only be

detained “to ensure his presence at trial and may [be] subject[ed] to the restrictions and

conditions of the detention facility so long as those conditions and restrictions do not

amount to punishment.” 441 U.S. 520, 536-37 (1979). If a particular condition or

       3
         Southerland’s complaint also alleged that his commissary purchases were
erroneously subjected to a victim compensation fund surcharge. Because he failed to
challenge the District Court’s dismissal of this claim in any of his filings to this Court, we
decline to consider the issue. See Laborers’ Int’l Union v. Foster Wheeler Corp., 26 F.3d
375, 398 (3d Cir. 1994) (“[a]n issue is waived unless a party raises it in its opening
brief”).


                                               5
restriction of pretrial detention is reasonably related to a legitimate governmental

objective, such as ensuring security and order at the institution, it does not, without more,

amount to punishment. Id. at 539. The central question here, therefore, is whether

Southerland’s complaint sufficiently alleged that the conditions of his pretrial

confinement constituted “punishment.” Southerland’s claim does not rely on a state-

created liberty interest, but instead concerns the direct effect of the Due Process Clause.

       Southerland’s pro se complaint, citing the Due Process Clause, detailed the

reasons why he believed his pretrial detention conditions were unconstitutional, including

that he was confined to a small cell with another pretrial detainee for 23 hours per day for

5 days out of the week, and for 32 hours over the course of the remaining two days of the

week. He alleged that this confinement was “psychologically destructive and an

unacceptable deprivation of privacy, common decency and security and safety” for a

pretrial detainee. He asserted that he received no prior misbehavior report, disciplinary

infraction, or any other documentation justifying his assignment to those conditions.

Because the District Court dismissed this claim before allowing Appellees to respond, the

Court had no basis upon it could have concluded that Southerland’s placement in the C-5-

East segregation cellblock was “reasonably related to a legitimate governmental

objective, such as ensuring security and order at the institution.” See Bell, 441 U.S. at

539. Under these circumstances, we conclude that Southerland’s complaint stated a

claim that his pretrial confinement constituted “punishment” in contravention of the Due

Process Clause, and therefore the District Court erred by sua sponte dismissing the claim.

                                              6
                                             IV.

       For those reasons, we will affirm the District Court’s July 26, 2012 order to the

extent that it dismissed Southerland’s claims relating to the police investigation into the

disappearance of his girlfriend and his ability to access to the courts while at HCCC. We

will vacate the District Court’s order to the extent that it dismissed Southerland’s claim

that his pretrial confinement conditions at HCCC constituted “punishment” under the

Due Process Clause of the Fourteenth Amendment, and remand for further proceedings.




                                              7
