                                                            NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ___________

                                    No. 13-3565
                                    ___________

                                 JAMES CIBULA,
                                    Appellant

                                          v.

  CHARLES FOX; LLOYD WHITE; MICHAEL GREEN; JEFFREY R. IMBODEN;
   CATHERINE C. MCVEY, BENJAMIN MARTINEZ; MATTHEW MANGINO;
 JUDITCH E. VIGLIONE; JOHN TUTTLE; KIMBERLY A. BARKLEY; CYNTHIA
  DAUB, Individually and in their official capacity as members and Employees of the
  Commonwealth of Pennsylvania Board of Probation and Parole; MR. STEINBERG,
   Psychologist, SCI MERCER; DEPUTY SUPERINTENDENT RUFFO; DEPUTY
   SUPERINTENDENT MAHLMEISTER; MARY JANE ECKERT, CC; THOMAS
  BURKHART; JEFFREY LEE HAYDEN; CYNTHIA REED; STEPHEN LAUFER;
   UNIT MANAGER COLE; JAMES P. OPPMAN; JOB SUPERVISOR KUSIAK;
REAGAN ROBERTS; ROBERT SMILEY; JAMES OPPMAN, Individually and in their
    Official Capacity as Employees of the Pennsylvania Department of Corrections

                            _______________________

                          On Appeal from the District Court
                       for the Middle District of Pennsylvania
                         (D.C. Criminal No. 1-12-cv-02065)
                     District Judge: Honorable John E. Jones, III
                                  ______________

                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  April 7, 2014

              Before: FISHER, SCIRICA, and COWEN, Circuit Judges

                           (Opinion Filed: June 26, 2014)
                                   _________________

                               OPINION OF THE COURT
                                  _________________


SCIRICA, Circuit Judge.

       Plaintiff James Cibula brought an action under 42 U.S.C. § 1983 against several

employees of the Pennsylvania Department of Corrections and the Commonwealth of

Pennsylvania Board of Probation and Parole.          He alleges defendants violated his

procedural due process rights by classifying him as a sex offender without a prior

hearing, violated the Eighth Amendment prohibition against cruel and unusual

punishment by subjecting him to abuse and harassment based on this improperly imposed

sex offender status, and collectively conspired to violate these constitutional rights. He

appeals the District Court’s order granting defendants’ Rule 12(b)(6) motions to dismiss

on the grounds that his claims were not filed within the two-year statute of limitations for

§ 1983 claims arising in Pennsylvania. We will affirm.1

                                             I.

       Cibula’s claims arise from his incarceration in a Pennsylvania state prison after

pleading nolo contendere to two counts of making terroristic threats in the Northampton

County Court of Common Pleas on February 5, 2007. After successfully appealing his

initial sentence of five to ten years, he was resentenced to consecutive terms of six

months to five years on December 21, 2007. One week later, he was transferred to State


1
 The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction under
28 U.S.C. § 1291.

                                             2
Correctional Institution Mercer (“Mercer”) from Northampton County Jail, where he had

been imprisoned since February 6, 2006.

      Upon arriving at Mercer, officers of the Pennsylvania Department of Corrections

recommended that Cibula be treated as a sex offender, which under 42 Pa. Cons. Stat.

Ann. § 9718.1 required him to participate in a sex offender treatment program. Cibula

contends corrections officers made this determination without affording him any

opportunity to contest his designation as a sex offender.2 While he was serving his

sentence, Cibula alleges corrections officers disclosed his sex offender status to guards

and inmates, which resulted in other inmates abusing and harassing him.

      He also contends his sex offender status impacted his parole applications. He

petitioned for parole in July 2008, but the Commonwealth of Pennsylvania Board of

Probation and Parole denied his request because he had not completed the sex offender

treatment program.    After this parole denial, Cibula attempted to participate in the

program. But corrections employee Stephen Laufer discharged him from the program

because “[r]eview of [his] record indicates all charges of sexual offending [were]

withdrawn by the state.” Cibula v. Fox, No. 1:12-cv-2065, 2013 WL 3871637, at *1

(M.D. Pa. July 25, 2013). Despite this discharge, the Parole Board again denied Cibula

parole in August 2009 for failure to complete the program.

      In addition to denying Cibula parole in August 2009, the Parole Board issued an

Administrative Action on February 3, 2010, stating:

2
  Though not entirely clear from the record, the confusion over Cibula’s sex offender
status appears to stem from the Commonwealth’s withdrawal of sex-related charges
against him when he pled nolo contendere to the terroristic threat charges.

                                           3
       Based on the information provided to the Parole Board, you have not
       attended and participated in a Department of Corrections program of
       counseling or therapy designed for incarcerated sex offenders as required
       by 42 Pa. C.S.A. Section 9718.1(a). Pursuant to 42 Pa. C.S.A. Section
       9718.1(b), your offense requires that you participate in sex offender
       treatment in order to be eligible for parole. Therefore, you will not be
       interviewed by the Parole Board for parole/reparole until notification is
       provided by the Department of Corrections that you have attended and
       participated in a Department of Corrections sex offender treatment
       program.

Cibula, 2013 WL 3871637, at *2 (footnote omitted). Cibula alleges the Parole Board, via

this Administrative Action, classified him as a sex offender without a prior hearing.

Based on the Administrative Action, he did not apply for parole in 2010 and 2011.

       Without a petition from Cibula, the Parole Board granted him parole on May 11,

2011. He was released from prison on August 18, 2011. Approximately fifteen months

later, on October 15, 2012, Cibula brought a § 1983 suit against several board members

and employees of the Parole Board (collectively, the “Parole Defendants”), alleging

violations of his procedural and substantive due process rights and his Eighth

Amendment right to protection against cruel and unusual punishment. The District Court

dismissed the complaint without prejudice for failure to sufficiently allege that the Parole

Defendants were responsible for the due process and Eighth Amendment violations.

       On March 28, 2013, Cibula filed an amended complaint, joining several

corrections employees as defendants (collectively, the “Corrections Defendants”),

withdrawing his substantive due process claim, and including additional factual

allegations supporting his procedural due process and Eighth Amendment claims. He

now contends the Parole and Corrections Defendants violated his procedural due process

rights by classifying him as a sex offender without a prior hearing, violated the Eighth
                                             4
Amendment prohibition against cruel and unusual punishment by subjecting him to abuse

and harassment based on his purported sex offender status, and collectively conspired to

violate these constitutional rights.

       The District Court dismissed the amended complaint because Cibula’s claims were

not filed within the two-year statute of limitations for § 1983 claims arising in

Pennsylvania.3 The District Court held the statutory period for his claims against the

Corrections Defendants accrued upon his arrival at Mercer on December 28, 2007, when

he was classified as a sex offender without any form of process. And the claims against

the Parole Defendants accrued when the Parole Board issued the Administrative Action

on February 3, 2010. Both of these incidents occurred over two years before Cibula filed

his initial complaint against the Parole Defendants on October 15, 2012, and his amended

complaint against both the Parole and Corrections Defendants on March 28, 2013.

       The District Court also rejected Cibula’s contention that even if his claims accrued

over two years before he filed suit, he can nonetheless bring them under the continuing

violations doctrine.    Under this doctrine, “when a defendant’s conduct is part of a

3
  The District Court addressed a number of other issues, but Cibula only appeals the
dismissal on statute of limitations grounds. Cibula contends “[a]ll other grounds asserted
by the defendants [in support of their motion to dismiss] were either denied, or not
addressed by the court.” Appellant Br. 11. This is not entirely accurate. The District
Court declined to address some issues, found in Cibula’s favor on others, and decided
two issues against Cibula. First, the court held the Parole Defendants enjoyed absolute
immunity for adjudicative decisions, like parole denials. Second, the court dismissed
damage claims against the Corrections Defendants for actions taken in their official
capacities on Eleventh Amendment grounds. Cibula has waived the right to contest these
issues on appeal because he did not raise them in his appellate brief. See United States v.
Pelullo, 399 F.3d 197, 222 (3d Cir. 2005) (“It is well settled that an appellant’s failure to
identify or argue an issue in his opening brief constitutes waiver of that issue on
appeal.”).

                                             5
continuing practice, an action is timely so long as the last act evidencing the continuing

practice falls within the limitations period.” Cowell v. Palmer Twp., 263 F.3d 286, 292

(3d Cir. 2001) (internal quotation marks and citation omitted). The District Court held

this doctrine did not apply because neither the Parole nor Corrections Defendants took

any actions during the limitations period that could be considered part of a continuing

violation. While the Corrections Defendants allegedly informed inmates of Cibula’s

status during the limitations period, the District Court concluded the abuse and

harassment he suffered as a result of these disclosures to be “merely the consequences of

the original act of deeming [him] a sex offender in 2007.” Cibula, 2013 WL 3871637, at

*8. The District Court also found that the original act of labeling Cibula a sex offender

upon his arrival at Mercer was “sufficiently permanent” to trigger his duty to assert his

due process rights. Id. Cibula timely appealed.

                                            II.

      Cibula challenges the District Court’s dismissal of his § 1983 claims as barred by

Pennsylvania’s two-year statute of limitations. He argues that even if his claims did not

accrue within two years of filing suit, they are nonetheless actionable under the

continuing violations doctrine. We first address whether his claims were timely filed and

then whether the continuing violations doctrine applies.

                                            A.

      We exercise plenary review over the District Court's dismissal of a claim under

Rule 12(b)(6) for failure to comply with the statute of limitations. In re Merck & Co.,

Inc. Sec., Derivative & “ERISA” Litig., 543 F.3d 150, 160 (3d Cir. 2008). The statute of

                                            6
limitations is an affirmative defense, which may be raised in a Rule 12(b)(6) motion if

“the time alleged in the statement of a claim shows that the cause of action has not been

brought within the statute of limitations.” Robinson v. Johnson, 313 F.3d 128, 135 (3d

Cir. 2002) (quoting Hanna v. U.S. Veterans’ Admin. Hosp., 514 F.2d 1092, 1094 (3d Cir.

1975)) (internal quotation marks omitted). “If the bar is not apparent on the face of the

complaint, then it may not afford the basis for a dismissal of the complaint under Rule

12(b)(6).” Id. (internal quotation marks and citation omitted).

       For § 1983 claims, federal courts apply the statute of limitations governing

personal injury actions in the state where the cause of action arose. Garvin v. City of

Philadelphia, 354 F.3d 215, 220 (3d Cir. 2003).          In Pennsylvania, the statute of

limitations for personal injury claims is two years. Id. (citing 42 Pa. Cons. Stat. Ann.

§ 5524(7) (West Supp. 2003)). “Under federal law, a cause of action accrues, and the

statute of limitations begins to run, ‘when the plaintiff knew or should have known of the

injury upon which its action is based.’” Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009)

(quoting Sameric Corp. v. City of Philadelphia, 142 F.3d 582, 599 (3d Cir. 1998)). “The

determination of the time at which a claim accrues is an objective inquiry; we ask not

what the plaintiff actually knew but what a reasonable person should have known.” Id.

(citing Barren v. United States, 839 F.2d 987, 990 (3d Cir. 1988)).

       It is apparent from the face of the amended complaint that Cibula’s procedural due

process claims against both the Corrections and Parole Defendants are time barred, as

they accrued over two years before he filed suit on October 15, 2012. His claim against

the Corrections Defendants accrued on December 28, 2007 (nearly five years before he

                                             7
filed his complaint), when he arrived at Mercer and was summarily labeled a sex offender

without receiving any opportunity to contest the classification.       Given that Cibula

received no process at all, a reasonable person would have known at this point that the

Corrections Defendants violated his procedural due process rights.4

       The accrual date of Cibula’s procedural due process claim against the Parole

Defendants also falls outside of the two-year statutory period. A reasonable person

would have been aware that a due process violation occurred when the Parole Board

issued the Administrative Action on February 3, 2010, over two-and-a-half years before

Cibula filed suit.5 Without holding a prior hearing, the Parole Board stated:

       [Y]our offense requires that you participate in sex offender treatment in
       order to be eligible for parole. Therefore, you will not be interviewed . . .
       for parole/reparole until notification is provided by the Department of
       Corrections that you have attended and participated in a . . . sex offender
       treatment program.

Cibula, 2013 WL 3871637, at *2. Based on this agency action, a reasonable person

would have concluded that the Parole Defendants labeled Cibula a sex offender without

providing any pre-classification process. Accordingly, his due process claim against the

Parole Defendants is time barred.

       Cibula’s Eighth Amendment claim against the Corrections Defendants also


4
  Inmates have a liberty interest in not being labeled sex offenders. Renchenski v.
Williams, 622 F.3d 315, 326 (3d Cir. 2010). Thus, the government must provide process
before making such classifications. See id. (“We agree that only after a prisoner has been
afforded due process may sex offender conditions be imposed on an inmate who has not
been convicted of a sexual offense.”).
5
  The accrual date could arguably have been even earlier. When the Parole Defendants
denied Cibula parole in July 2008 and August 2009 because he had not completed the sex
offender treatment program, a reasonable person may well have concluded the Parole
Board was classifying him as a sex offender without any pre-classification process.
                                           8
accrued more than two years before he filed suit. He contends the Eighth Amendment

violation resulted when the Corrections Defendants disclosed his sex offender status to

guards and inmates, which led to abuse and harassment by other inmates. But both

Cibula’s amended complaint and his appellate brief fail to provide specific facts

regarding such disclosures and the resulting abuse and harassment, including the specific

times when they occurred.6 Moreover, on appeal Cibula does not appear to advance any

argument that the Corrections Defendants violated his Eighth Amendment rights within

the two-year statute of limitations, relying instead on the continuing violations doctrine,

an equitable exception to the statutory period. Accordingly, Cibula’s Eighth Amendment

claim against the Corrections Defendants is also time barred.

                                             B.

       Cibula argues that even if his claims accrued over two years before he filed suit,

these claims are actionable under the continuing violations doctrine. Under this doctrine,

a plaintiff can sue for actions that occurred outside the applicable limitations period if “a

defendant’s conduct is part of a continuing practice [and] . . . the last act evidencing the

continuing practice falls within the limitations period.” Cowell, 263 F.3d at 292 (internal

quotation marks and citation omitted). But Cibula has failed to establish the doctrine

applies here.

       To determine whether a practice was continual, we consider (1) whether the

violations are part of the same subject matter and (2) whether the violations occurred

6
  Cibula’s allegation that he suffered abuse and harassment until his August 18, 2011,
release from prison is insufficient to demonstrate that these acts occurred within the
statute of limitations because he fails to plead any facts concerning these acts.
                                             9
frequently. See Mandel v. M & Q Packaging Corp., 706 F.3d 157, 165–67 (3d Cir.

2013).7 A plaintiff must also point to an affirmative act that took place within the

limitations period for the continuing violations doctrine to apply. See Cowell, 263 F.3d at

293 (“The focus of the continuing violations doctrine is on affirmative acts of the

defendants.”).8

       For example, in Cowell, plaintiffs brought a substantive due process claim

challenging the validity of liens fixed on their property. Id. They filed their claim after

the statute of limitations had expired, but contended the existence of the allegedly illegal

liens was an affirmative act that constituted a continuing violation of their due process

rights. Id. We disagreed, holding the “mere existence of the liens does not amount to a

continuing violation” and “the Township’s refusal to remove the lien [is not] an

affirmative act of a continuing violation.” Id. We distinguished between “continual

unlawful acts,” which can serve as the basis of a continuing violation, and “continual ill

effects from an original violation,” which cannot. Id. (quoting Ocean Acres Ltd. v. Dare

7
 Cowell included a third factor—whether the violations had a degree of permanence that
would have triggered the plaintiff’s awareness of the duty to assert his or her rights.
Cowell, 263 F.3d at 292. But we limited Cowell’s test for determining whether a
continuing violation exists by eliminating the degree of permanence factor in light of
National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002). See Mandel, 706
F.3d at 165–67.
8
  Although Mandel did away with Cowell’s degree of permanence factor, it did not
eliminate Cowell’s requirement of an affirmative act within the limitations period for
application of the continuing violations doctrine. Accordingly, although Cibula is correct
that the District Court erred by relying in part on the degree of permanence factor in
refusing to apply the continuing violations doctrine, we may nevertheless affirm because
the court also relied on Cibula’s failure to adequately allege defendants committed an
affirmative act within the limitations period. See Cowell, 263 F.3d at 393; see also Christ
the King Manor v. Sec’y U.S. Dep’t of Health & Human Servs., 730 F.3d 291, 321 (3d
Cir. 2013) (noting we may affirm on any basis supported by the record).
                                             10
Cnty. Bd. of Health, 707 F.2d 103, 106 (4th Cir. 1983)).

       As in Cowell, neither the Parole nor Corrections Defendants took any affirmative

actions during the two-year period before Cibula filed suit that could be construed as part

of a continuing violation of his procedural due process or Eighth Amendment rights. The

Parole Defendants granted him parole during that time, but that is not an unlawful action

furthering Cibula’s constitutional claims. Cibula argues the Corrections Defendants’

disclosure of his status as a sex offender during this time qualifies as an unlawful act

because it led to abuse and harassment by other inmates. But Cibula failed to plead when

the disclosure to other inmates and the abuse and harassment occurred, so we cannot

determine whether any of these acts happened within the statute of limitations. See id. at

292 (“In order to benefit from the [continuing violations] doctrine, a plaintiff must

establish that the defendant's conduct is ‘more than the occurrence of isolated or sporadic

acts.’” (quoting West v. Phila. Elec. Co., 45 F.3d 744, 755 (3d Cir. 1995)).

       Even assuming disclosure occurred within the limitations period, we agree with

the District Court that the abuse and harassment Cibula allegedly suffered as a result of

these disclosures is best viewed as “merely the consequences of the original act of

deeming [him] a sex offender in 2007.” See Cibula, 2013 WL 3871637, at *8; see also

Cowell, 263 F.3d at 293 (noting that “continual ill effects from an original violation”—

unlike “continual unlawful acts”—cannot serve as the basis of a continuing violation).

Accordingly, the continuing violations doctrine does not apply to Cibula’s claims.

                                            III.

       For the foregoing reasons, we will affirm the District Court’s order dismissing

                                            11
Cibula’s complaint.




                      12
