LACEY v. SANDUSKY et al

Filing 3

ORDER THAT THE PETITION FOR WRIT OF HABEAS CORPUS IS DENIED WITHOUT PREJUDICE; IF PETITIONER FILES WITH THE CLERK OF COURT WITHIN TWENTY (20) DAYS OF THE DATE OF THIS ORDER A NOTICE THAT HE WISHES TO PROCEED WITH THIS ACTION AND OBLIGATES HIMSELF TO PAY THE $350.00 FILING FEE, THIS ACTION WILL BE REINSTED. SIGNED BY HONORABLE TIMOTHY J. SAVAGE ON 9/9/14. 9/10/14 ENTERED AND COPIES MAILED TO PRO SE PETITIONER. (jpd)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
WILLIAM PERRY LACEY
v.
JERRY SANDUSKY and
PENN STATE COLLEGE

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CIVIL ACTION
NO. 14-5067

ORDER
AND NOW, this 9th day of September, 2014, it is ORDERED as follows:
1.

The petition to proceed in forma pauperis (Document No. 1) is DENIED

WITHOUT PREJUDICE1;
2.

If petitioner files with the Clerk within twenty (20) days from the date of this

Order a notice that he wishes to proceed with this action and obligates himself to pay the
$350.00 filing fee, this action will be reinstated.

/s/Timothy J. Savage
TIMOTHY J. SAVAGE, J.

1

Because plaintiff is proceeding in forma pauperis, the Court m ust dism iss the com plaint if it fails
to state a claim . 28 U.S.C. § 1915(e)(2)(B)(ii). W hether a com plaint fails to state a claim under § 1915(e)
is governed by the sam e standard applicable to m otions to dism iss under Federal Rule of Civil Procedure
12(b)(6), see Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999), which requires the Court to
determ ine whether the com plaint contains “sufficient factual m atter, accepted as true, to state a claim to
relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotations om itted). The
Court m ay dism iss claim s based on an affirm ative defense if the affirm ative defense is obvious from the
face of the com plaint. See Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006); cf. Ball v. Famiglio,
726 F.3d 448, 459 (3d Cir. 2013).
It is apparent from the face of the com plaint that this action is tim e-barred. Plaintiff asserts claim s
against Jerry Sandusky and Penn State College, apparently pursuant to 42 U.S.C. § 1983 and state law,
based on allegations that Sandusky sexually assaulted him in 1978 and 1979, when he was between 14
and 15 years old. Pennsylvania’s statute of lim itations governing claim s of childhood sexual abuse applies
to plaintiff’s claim s. See W allace v. Kato, 549 U.S. 384, 387 (2007). According to that statute, “[i]f an
individual entitled to bring a civil action arising from childhood sexual abuse is under 18 years of age at the
tim e the cause of action accrues, the individual shall have a period of 12 years after attaining 18 years of
age in which to com m ence an action for dam ages regardless of whether the individual files a crim inal
com plaint regarding the childhood sexual abuse.” 42 Pa. Cons. Stat. § 5533(b)(2)(I). Plaintiff reached the
age of m ajority in 1982. Consequently, he had until 1994 to bring his claim s. Because plaintiff did not file
this lawsuit until 2014, twenty years after the expiration of the lim itations period, his claim s are tim ebarred.