BLD-045                                                    NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            ___________

                                No. 11-3303
                                ___________

                            GARETH E. LOMAX,
                                        Appellant

                                      v.

                    UNITED STATES OF AMERICA
            SENATE ARMED FORCES SERVICE COMMITTEE;
        SENATE ARMED FORCES APPROPRIATIONS COMMITTEE;
                      SECRETARY OF DEFENSE;
           ADMIRAL MIKE MULLEN, Chair; Joint Chiefs of Staff;
         MICHELE FLOURNOY, Under Secretary for Defense Policy;
  VICE ADMIRAL JAMES P. “PHIL” WISECUP, Office of the Inspector General;
                     SECRETARY OF THE NAVY;
          ADMIRAL GARY ROUGHEAD, Chief of Naval Operations
                ____________________________________

                On Appeal from the United States District Court
                   for the Western District of Pennsylvania
                         (D.C. Civil No. 11-cv-00988)
                 District Judge: Honorable Arthur J. Schwab
                 ____________________________________

               Submitted for Possible Summary Action Pursuant to
                    Third Circuit LAR 27.4 and I.O.P. 10.6
                              November 17, 2011
          Before: SCIRICA, SMITH AND CHAGARES, Circuit Judges

                          (Filed: December 5, 2011)

                                  _________

                         OPINION OF THE COURT
                               _________
PER CURIAM.

       Gareth Lomax appeals an order of the United States District Court for the Western

District of Pennsylvania dismissing his complaint under 28 U.S.C. § 1915(e)(2)(B).

Appellees have filed a motion seeking summary affirmance of the District Court’s order.

We grant the motion and will affirm the District Court’s order.

                                             I.

       In July 2011, Lomax filed a complaint under 42 U.S.C. § 1983 in the District

Court against the United States Senate Armed Services Committee and several leaders of

the armed forces. Lomax alleged that he had endured racial discrimination while serving

in the United States Navy between 1988 and 1991 and that this discrimination caused him

to be deprived of the Congressional Medal of Honor award. Lomax asked the District

Court to order a United States Department of Defense investigation into his military

service. Lomax seeks the investigation in order to: 1) correct errors in his military

service record caused by the alleged racial discrimination; and 2) determine his eligibility

for the Congressional Medal of Honor.

       The District Court sua sponte dismissed Lomax’s complaint as frivolous pursuant

to 28 U.S.C. § 1915(e)(2)(B)(i). Lomax timely appealed.

                                             II.

       We have appellate jurisdiction under 28 U.S.C. § 1291, and our review is plenary.

See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). A court may dismiss a

complaint as frivolous under § 1915(e)(2)(B)(i) if the action “lacks an arguable basis
                                             2
either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). We may

summarily affirm a district court’s judgment if the appeal does not raise a substantial

question. See Third Cir. LAR 27.4; I.O.P. 10.6. We may affirm on any basis supported

by the record. Hedges v. Musco, 204 F.3d 109, 116 (3d Cir. 2000).

       The District Court properly dismissed Lomax’s complaint. Lomax purported to

proceed under 42 U.S.C. § 1983. As the District Court noted, to state a claim under

section 1983 a plaintiff “must allege the violation of a right secured by the Constitution

and laws of the United States, and must show that the alleged deprivation was committed

by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).

The District Court correctly determined that Lomax’s complaint fails to allege that any of

the defendants were acting under color of state law.

       The District Court did not abuse its discretion in dismissing the complaint without

leave to amend because we agree that amendment of Lomax’s complaint would have

been futile. See Foman v. Davis, 371 U.S. 178, 182 (1962). Even if Lomax’s claims

against the federal officials were construed as challenges under Bivens v. Six Unknown

Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), they are time-barred. 1 The

statute of limitations for a Bivens claim, as for claims arising under section 1983, is

borrowed from the forum state’s personal injury statute. See Wilson v. Garcia, 471 U.S.


1
  Bivens allows a plaintiff to bring a claim against federal officers acting under color of
law for violations of that individual’s constitutional rights. Id. at 397. However, Bivens
claims do not lie against the federal government or federal agencies. See F.D.I.C. v.
Meyer, 510 U.S. 471, 486 (1994).
                                               3
261, 266-67 (1985); King v. One Unknown Fed. Corr. Officer, 201 F.3d 910, 913 (7th

Cir. 2000) (same statute of limitations applies to actions under Bivens and § 1983).

       In Pennsylvania, the statute of limitations for personal injury actions is two years.

42 Pa. C.S.A. § 5524. Here, the incidents underlying Lomax’s complaint occurred before

1992, making it apparent from the face of the complaint that the two-year statute of

limitations expired well before he filed suit in 2011. Lomax conceded in his complaint

that his claims are likely untimely and, although he argues that his claims should be

equitably tolled, he does not provide any basis for doing so. 2 In light of the above, the

District Court did not err in dismissing Lomax’s complaint with prejudice.

       Based on the foregoing, we conclude that no substantial question is presented in

this appeal, and that summary action is appropriate. See Third Circuit LAR 27.4.

Accordingly, we grant the Appellees’ motion for summary action and will summarily

affirm the District Court’s order. See Third Circuit I.O.P. 10.6.




2
  Equitable tolling is appropriate where: (1) a defendant actively misleads a plaintiff with
respect to her cause of action; (2) the plaintiff has been prevented from asserting her
claim as a result of other extraordinary circumstances; or (3) the plaintiff asserts her
claims in a timely manner but has done so in the wrong forum. See Lake v. Arnold, 232
F.3d 360, 370 n.9 (3d Cir. 2000).
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