BLD-282                                                  NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            ___________

                                No. 13-2072
                                ___________

                        MONSERRATE M. ZAPATA,
                                      Appellant

                                      v.

          COMMONWEALTH OF PENNSYLVANIA; JOHN DOES 1-100;
               THE UNITED STATES ATTORNEY’S OFFICE
             FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                  ____________________________________

                On Appeal from the United States District Court
                   for the Eastern District of Pennsylvania
                        (D.C. Civil No. 2:12-cv-06688)
                  District Judge: Honorable Cynthia M. Rufe
                 ____________________________________

                    Submitted for Possible Summary Action
               Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                 June 13, 2013
     Before: SCIRICA, HARDIMAN and GREENAWAY, JR., Circuit Judges

                         (Opinion filed: July 3, 2013)
                                 _________

                                  OPINION
                                  _________
PER CURIAM

          Monserrate Zapata appeals from the District Court’s order dismissing his

complaint. For the following reasons, we will grant the appellee’s motion and summarily

affirm.

                                            I.

          In November 2012, Monserrate Zapata brought a civil action against the U.S.

Attorney’s Office for the Eastern District, the Commonwealth of Pennsylvania, and

various state officials. Although difficult to decipher exactly, his complaint seems to

allege a government conspiracy related to his 1971 murder conviction. In particular,

Zapata claimed that (1) the judge who presided over his criminal case improperly acted as

both the arraignment judge and the trial judge, and lacked adequate experience as a

“Homicide Trial Judge”; (2) his twelve-year sentence was inconsistent with the jury’s

verdict; (3) the jury improperly found him guilty of manslaughter, for which he was not

charged in the indictment; and (4) the U.S. Attorney’s Office ignored complaints that he

made in 1973 about these alleged civil rights violations, allowing the state defendants to

“contaminate the federal courts with fraud.”

          The U.S. Attorney’s Office moved to dismiss the complaint as time-barred.

Zapata responded, arguing that the limitations period should be tolled because he only

recently penetrated the alleged web of fraud and concealment that the defendants had

weaved around their wrongdoing. The District Court agreed with the U.S. Attorney’s

Office, determining that more than 40 years had passed since the events occurred, and
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dismissed with prejudice Zapata’s complaint. Zapata timely appealed. The appellee has

filed a motion asking that we summarily affirm the District Court’s judgment.

                                               II.

       We have jurisdiction under 28 U.S.C. § 1291, and we exercise plenary review over

the District Court’s grant of the U.S. Attorney’s Office’s motion to dismiss. See Gelman

v. State Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir. 2009). To survive

dismissal, Zapata’s complaint needed to “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)). We

may summarily affirm a judgment of the District Court on any basis supported by the

record if the appeal does not raise a substantial question. See I.O.P. 10.6; see also

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

       Zapata’s allegations are premised on events that occurred in the 1970s. Whether

those allegations were brought under 42 U.S.C. § 1983 or § 1985—as Zapata’s complaint

cites both sections of the statute—he had to file this action within two years from the time

when he “knew or should have known of the injury upon which its action is based.”

Sameric Corp. of Del. v. Philadelphia, 142 F.3d 582, 599 (3d Cir. 1998); see also 42 Pa.

Cons. Stat. Ann. § 5524; Bougher v. Univ. of Pittsburgh, 882 F.2d 74, 80 (3d Cir. 1989).

Zapata’s claim against the U.S. Attorney’s Office clearly accrued more than two years

before he filed this action in 2012. As Zapata himself admits, it accrued sometime back

in the 1970s or the 1980s at the latest, after the U.S. Attorney’s Office allegedly refused
                                               3
to respond to the complaint he had filed in 1973 about his criminal proceedings. (Notice

of Appeal at 4.) But rather than filing immediately back then the claims at issue here, he

waited until 2012—far beyond the statute of limitations.

       Zapata contended that equitable tolling should save his claims from dismissal

because he only recently learned that the defendants had shrouded their wrongdoing in

fraud and concealment, and he feared for his family’s safety. Indeed, the statute of

limitations may be tolled in cases of fraud or concealment. See 42 Pa. Cons. Stat. Ann.

§ 5504(a); Aivazoglou v. Drever Furnaces, 613 A.2d 595, 598 (Pa. Super. Ct. 1992); see

also Hardin v. Straub, 490 U.S. 536, 539 (1989) (explaining that, like the statute of

limitations, tolling rules in § 1983 actions are taken from the rules of the forum state). As

the District Court correctly determined, however, Zapata’s argument is unavailing. It is

not enough to cryptically claim that the defendants “concealed their wrongdoing” and

that the federal courts may be “bathing in fraud” without support for these allegations.

(Opp’n to Mot. for Summ. J. at 5.) Moreover, as explained above, it appears that Zapata

knew of the defendants’ alleged wrongdoing back in the 1970s (or the 1980s at the very

latest), but he waited until 2012 to file this action. His apparent lack of diligence further

renders his tolling claim meritless. See New Castle Cnty. v. Halliburton NUS Corp., 111

F.3d 1116, 1126 (3d Cir. 1997).




                                              4
       For the reasons given, the District Court properly dismissed Zapata’s complaint.1

Accordingly, because this appeal presents no substantial question, we will summarily

affirm the judgment of the District Court. Murray, 650 F.3d at 248; see also 3d Cir.

L.A.R.; I.O.P. 10.6.




1
 The District Court properly dismissed as time-barred Zapata’s claims against the
Commonwealth and the various state officials. See Vasquez Arroyo v. Starks, 589 F.3d
1091, 1097 (3d Cir. 2009) (explaining that a District Court may sua sponte dismiss
§ 1983 claims as untimely if “it is clear from the face of the complaint that there are no
meritorious tolling issues . . .”).
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