Lassegue v. United States of America et al

Filing 39

MEMORANDUM (Order to follow as separate docket entry) re 20 MOTION to Dismiss MOTION for Summary Judgment filed by United States of America. Signed by Chief Judge Matthew W. Brann on 7/29/2022. (lg)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DAVID LASSEGUE,

No. 4:21-CV-01466

Plaintiff,

(Chief Judge Brann)

v.
UNITED STATES, et al.,
Defendants.
MEMORANDUM OPINION
JULY 29, 2022
Plaintiff David Lassegue (“Lassegue”), a federal inmate currently confined in
the United States Penitentiary, Leavenworth, Kansas, commenced the above captioned
Federal Tort Claims Act (FTCA)1 and Bivens2 action on August 25, 2021, against the
United States and various other individuals employed at USP-Allenwood and USPPollock, Plaintiff’s former places of confinement.3 He asserts a negligence claim
against the United States concerning his security classification.4 Specifically,
Lassegue alleges that because of a miscalculation of security points, he was
erroneously designated to a maximum security penitentiary (USP-Allenwood) where
he was assaulted and sustained debilitating injuries.5

1
2
3
4
5

28 U.S.C. § 2671, et seq.
Bivens v. Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388
(1971).
Doc. 1.
Id.
Id.

Presently pending is the United States’ motion to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6) and/or for summary judgment pursuant to Federal
Rule of Civil Procedure 56.6 For the reasons that follow, the Court will grant
Defendant’s motion.
I.

STANDARDS OF REVIEW
A.

Motion to Dismiss

In rendering a decision on a motion to dismiss, a court should not inquire
“whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer
evidence to support the claims.”7 The court must accept as true the factual allegations
in the complaint and draw all reasonable inferences from them in the light most
favorable to the plaintiff.8 In addition to considering the facts alleged on the face of
the complaint, the court may consider “documents incorporated into the complaint by
reference, and matters of which a court may take judicial notice.”9
However, “[t]he tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions.”10 “Under the pleading
regime established by Twombly and Iqbal, a court reviewing the sufficiency of a
complaint must take three steps. First, it must ‘tak[e] note of the elements [the]
plaintiff must plead to state a claim.’ Iqbal, 556 U.S. at 675, 129 S.Ct. 1937. Second,
6
7
8
9
10

Doc. 20.
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Nami v. Fauver, 82 F.3d 63, 66 (3d Cir.
1996).
See Phillips v. Cty of Allegheny, 515 F.3d 224, 229 (3d Cir. 2008).
Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (stating “[t]hreadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do not suffice.”).
2

it should identify allegations that, ‘because they are no more than conclusions, are not
entitled to the assumption of truth.’ Id. at 679, 129 S.Ct. 1937. See also Burtch v.
Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir.2011) (“Mere restatements of the
elements of a claim are not entitled to the assumption of truth.” (citation and editorial
marks omitted)). Finally, ‘[w]hen there are well-pleaded factual allegations, [the]
court should assume their veracity and then determine whether they plausibly give rise
to an entitlement to relief.’ Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.”11 Deciding
whether a claim is plausible is a “context-specific task that requires the reviewing
court to draw on its judicial experience and common sense.”12
B.

Motion for Summary Judgment

Summary judgment should be granted when the pleadings, depositions,
answers to interrogatories, admissions on file, and affidavits show that there is no
genuine dispute as to any material fact and that the moving party is entitled to a
judgment as a matter of law.13 A disputed fact is material when it could affect the
outcome of the suit under the governing substantive law.14 A dispute is genuine if the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.15 The Court should view the facts in the light most favorable to the non-

11
12
13
14
15

Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016) (footnote omitted).
Iqbal, 556 U.S. at 681.
Fed. R. Civ. P. 56(c).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Id. at 250.
3

moving party and make all reasonable inferences in that party’s favor.16 When the
non-moving party fails to refute or oppose a fact, it may be deemed admitted.17
Initially, the moving party must show the absence of a genuine issue concerning any
material fact.18 Once the moving party has satisfied its burden, the non-moving party,
“must present affirmative evidence in order to defeat a properly supported motion for
summary judgment.”19 “While the evidence that the non-moving party presents may
be either direct or circumstantial, and need not be as great as a preponderance, the
evidence must be more than a scintilla.”20 “If a party ... fails to properly address
another party’s assertion of fact as required by Rule 56(c),” a court may grant
summary judgment or consider the fact undisputed for purposes of the motion.21
If the court determines that “the record taken as a whole could not lead a
rational trier or fact to find for the non-moving party, there is no ‘genuine issue for
trial’.”22 Rule 56 mandates the entry of summary judgment against the party who fails
to make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of proof at trial.23

16
17

18
19
20
21
22
23

Hugh v. Butler County Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005).
See Fed. R. Civ. P. 56(e)(2); Local R. 56.1 (“All material facts set forth in the statement
required to be served by the moving party will be deemed to be admitted unless
controverted by the statement required to be served by the opposing party.”).
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Anderson, 477 U.S. at 257.
Hugh, 418 F.3d at 267 (citing Anderson, 477 U.S. at 251).
Fed. R. Civ. P. 56(e)(2)-(3).
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First
Nat’l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).
Celotex Corp., 477 U.S. at 322.
4

II.

STATEMENT OF MATERIAL FACTS24
On September 26, 2014, Lassegue was sentenced in the United States

District Court for the District of Rhode Island.25
On October 7, 2014, the BOP completed Lassegue’s initial classification and
Designation and on November 13, 2014, Lassegue arrived at USP-Allenwood.26
On July 17, 2015, Lassegue departed USP-Allenwood and on August 13, 2015,
he was designated to, and arrived at, USP-Canaan.27
On January 19, 2016, Lassegue departed USP-Canaan and on January 20, 2016
was designated to, and arrived at, USP-Pollock.28
On January 11, 2017, Lassegue departed USP-Pollock.29
On September 6, 2017, Lassegue’s Administrative Tort Claim No. TRT-NER2017-03305, received on March 15, 2017, was denied as untimely as follows:
This office has received your administrative claim in which you seek
compensation for an alleged personal injury. Specifically, you allege the
Designation, Sentence and Computation Center incorrectly classified
24

25
26
27
28
29

Middle District of Pennsylvania Local Rules of Court provide that in addition to filing a
brief in response to the moving party’s brief in support, “[t]he papers opposing a motion
for summary judgment shall include a separate, short and concise statement of material
facts responding to the numbered paragraphs set forth in the statement [of material facts
filed by the moving party] ..., as to which it is contended that there exists a genuine issue
to be tried.” See M.D. Pa. LR 56. 1. The rule further states that the statement of material
facts required to be served by the moving party will be deemed to be admitted unless
controverted by the statement required to be served by the opposing party. See id. Because
Plaintiff has failed to file a separate statement of material facts controverting the statement
filed by Defendant, all material facts set forth in Defendant’s statement, Doc. 23, will be
deemed admitted.
Doc. 23-1 at 11.
Doc. 23-1 at 15.
Id.
Id.
Id.
5

you as a High security inmate causing you to be erroneously housed in
USP-Allenwood, a more violent and hostile facility.
After review, your claim has been denied because you have failed to
submit your administrative claim within the time restrictions contained
in the applicable statutes and federal regulations. Your initial
classification and designation was completed on October 7, 2014 and
you arrived at USP-Allenwood on November 13, 2014. According to 28
U.S.C. § 2401(b), “A tort claim against the United States shall be forever
barred unless it is presented in writing to the appropriate Federal agency
within two years after such claim accrues or unless action is begun
within six months after the date of mailing by certified or registered
mail, or notice of final denial of the claim by the agency to which it was
presented.”
If you are dissatisfied with this decision, you may bring an action against
the United States in an appropriate United States District Court within
six (6) months of the date of this letter.30
By letter dated October 5, 2017, Lassegue sought reconsideration of the denial
of Administrative Tort Claim No. TRT-NER-2017-03305.31
On November 1, 2017, the Northeast Regional Office denied Lassegue’s
reconsideration of Administrative Tort Claim No. TRT-NER-2017-03305 as follows:
Your request for reconsideration of Administrative Claim No. TRTNER-2017-0335, properly received on October 16, 2017, has been
considered for settlement as provided by the Federal Tort Claims Act
(FTCA), 28 U.S.C. § 2672, under authority delegated to me by 28 C.F.R.
§ 543.30. Damages are sought in the amount of $200,000.00 based on a
personal injury claim. Specifically, you allege the Designation Sentence
and Computation Center (DSCC) incorrectly classified you as a High
Security inmate, causing you to suffer injuries when you were assaulted
by other inmates at USP-Allenwood.
A careful review of the reconsideration shows there is insufficient
evidence to support the allegations of your claim. Records show your
designation by the DSCC was correctly calculated and verified. Further,
30
31

Doc. 23-3 at 13
Doc. 23-3 at 15.
6

medical records do not indicate your claims of facial fractures or neck
injuries resulting from June 19, 2015. There is no evidence that you
experienced a compensable loss as a result of negligence on the part of
any Bureau of Prisons employee. Accordingly, your claim is denied.
If you are dissatisfied with this decision, you may bring an action against
the United States in the appropriate United States District Court within
six (6) months of the date of this letter.32
On February 2, 2018, Lassegue filed Civil Action No. 1:18-cv-0109-SM, in the
United States District Court for the District of New Hampshire, seeking $200,000.00
in damages under the FTCA, alleging that the BOP negligently
misclassified him as a maximum security inmate and proximately caused
him to suffer personal injury when he was subsequently housed at USP
Allenwood and assaulted by other inmates.33
On May 29, 2019, the United States Attorney’s Office for the District of New
Hampshire filed a motion to dismiss Lassegue’s complaint based on, inter alia,
improper venue.34 On October 7, 2019, Lassegue filed a motion to withdraw his
complaint and for change of venue.35 By Order dated November 20, 2019, the
District of New Hampshire granted Lassegue’s motion to withdraw his complaint
without prejudice.36
On August 25, 2021, Plaintiff filed the instant action.37

32
33
34
35
36
37

Doc. 23-3 at 14.
Doc. 23-2.
Id.
Id.
Id.
Doc. 1.
7

II.

DISCUSSION
A.

FTCA Claim

Lassegue alleges that he suffered personal injuries after the BOP negligently
classified him as a “High” security inmate, causing him to be erroneously housed at
USP-Allenwood, which he believed to be a more violent and hostile facility.38
The United States claims that it is entitled to summary judgment because the
action, arising under the Federal Tort Claims Act (“FTCA”) is time-barred.39 The
United States argues that Plaintiff’s action should have been filed within six months
of the Northeast Regional Office’s November 1, 2017 reconsideration and denial of
Plaintiff’s Administrative Tort Claim No. TRT-NER-2017-03305, or, at the very
latest, six months after the November 20, 2019 dismissal of Lassegue’s Civil Action
No. 1:18-cv-0109-SM, from the United States District Court for the District of New
Hampshire.40
In turn, Plaintiff claims that he is entitled to equitable tolling of the statute for
two reasons. First, Plaintiff asserts that the “Order by United States District Judge,
Steven J. McAuliffe, clearly shows the pleadings does not reveal when the limitations
period began to run.”41 Second, Plaintiff states that he “was on a (IAD) ‘Interstate
Agreement’ from 1-25-19 to 04-15-2021” and that when he “finally got designated
back to FCI-Gilmer, on 04/15/2021, Plaintiff was housed in the quarantine unit A-3

38
39
40
41

Id.
Doc. 22 at 7.
Id.
Doc. 23-4 at 2.
8

for 21 days on 24 hours lock down without access to anything except for 15 minute
showers on Monday, Wednesday and Fridays.”42
Pursuant to 28 U.S.C. § 2401(b),
A tort claim against the United States shall be forever barred unless it is
presented in writing to the appropriate Federal agency within two years
after such claim accrues or unless action is begun within six months after
the date of mailing, by certified or registered mail, of notice of final
denial of the claim by the agency to which it was presented.43
Under the FTCA, a “claimant must file both a claim with the federal agency within
two years of the tort and a suit within six months of the agency’s denial....”44
The FTCA operates as a limited waiver of the United States’ sovereign
immunity. See Roma v. United States, 344 F.3d 352, 362 (3d Cir. 2003).
“Because the Federal Tort Claims Act constitutes a waiver of sovereign
immunity, the Act’s established procedures have been strictly
construed.” Livera v. First Nat’l State Bank of N.J., 879 F.2d 1186,
1194 (3d Cir. 1989). “[W]e should not take it upon ourselves to extend
the waiver beyond that which Congress intended.” United States v.
Kubrick, 444 U.S. 111, 117-18 (1979).45
The United States’ position that Lassegue must have filed his FTCA action, at
the very latest, six months after the November 20, 2019 dismissal of his civil action in
the District of New Hampshire, necessarily rests upon the plain language of § 2401(b)
and the repeated admonition by courts that the FTCA’s procedures must be “strictly
construed”. The Court recognizes, however, that Supreme Court has held that both of
the FTCA’s limitations periods are “non-jurisdictional and subject to equitable

42
43
44
45

Id. at 2-3.
28 U.S.C. § 2401(b).
Sconiers v. United States, 896 F.3d 595, 598-599 (3d Cir. 2018).
White-Squire v. U.S. Postal Serv., 592 F.3d 453, 456 (3d Cir. 2010).
9

tolling.” United States v. Kwai Fun Wong, 575 U.S. 402, 420 (2015). As the Third
Circuit recently explained:
It is well established that a court may “rescue a claim otherwise barred
as untimely by a statute of limitations when a plaintiff [shows she] has
‘been prevented from filing in a timely manner due to sufficiently
inequitable circumstances.’ ” [Santos ex rel. Beato v. United States, 559
F.3d 189, 197 (3d Cir. 2009)] (quoting Seitzinger v. Reading Hosp. &
Med. Ctr., 165 F.3d 236, 240 (3d Cir. 1999)). Tolling “is [an]
extraordinary” remedy, id., and “is proper only when the ‘principles of
equity would make [the] rigid application [of a limitation period]
unfair,” Miller v. N.J. State Dep’t of Corr., 145 F.3d 616, 618 (3d Cir.
1998) (alterations in original) (quoting Shendock v. Dir., Office of
Workers’ Comp. Programs, 893 F.2d 1458, 1462 (3d Cir. 1990) (en
banc)).46
Thus, “a litigant is entitled to equitable tolling of a statute of limitations only if the
litigant establishes two elements: ‘(1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his way and prevented timely
filing’.”47 A Court should treat these requirements as distinct elements and need not
address both where a Court has already found that the litigant failed to satisfy one of
the elements.48 The diligence prong covers “those affairs within the litigant’s control”
whereas the extraordinary-circumstances prong covers “matters outside” the litigant’s
control.49
Here, the record reveals that Lassegue initially filed Administrative Tort Claim
No. TRT-NER-2017-03305 on March 15, 2017. It was denied on September 6, 2017

46
47
48
49

D.J.S.-W. v. United States, 962 F.3d 745, 749-750 (3d Cir. 2020).
Menominee Indian Tribe of Wis. v. United States, 136 S.Ct. 750, 755 (2016) (quoting
Holland v. Florida, 560 U.S. 631, 649 (2010)).
Id.
Id. at 756.
10

as untimely, and Plaintiff was informed he had six months from September 6, 2017 to
bring an action against the United States in an appropriate District Court. Plaintiff,
instead, sought reconsideration of the denial of Administrative Tort Claim No. TRTNER-2017-03305, which was denied on the merits, for insufficient evidence, on
November 1, 2017. Lassegue was informed that he had six months from November 1,
2017 to bring an action against the United States in an appropriate District Court. On
February 2, 2018, three months into the six-month statute of limitations, Lassegue
filed a civil action against the United States in the wrong venue. On November 20,
2019, the District of New Hampshire granted Lassegue’s motion to voluntarily
withdraw the complaint. No further action is taken on Administrative Tort Claim No.
TRT-NER-2017-03305 until the filing of the instant action on August 25, 2021, some
twenty-one (21) months later.
Plaintiff now seeks equitable tolling, arguing, first, that the November 20, 2019
Order of the District of New Hampshire “clearly shows the pleadings does not reveal
when the limitations period began to run.”50 The Court finds this argument of no
moment.
The Order of November 20, 2019, notes that while the government filed a
motion to dismiss on two grounds: “first that venue is improper in this forum; and
second, that the discretionary function exception to the FTCA bars Lassegue’s suit[,]
Lassegue acknowledges that this suit ‘was filed in the wrong court’ and moves the

50

Doc. 26 at 1.
11

court ‘to with withdraw his complaint for a change of venue’.”51 The Court then
grants Lassegue’s motion to withdraw and deems the government’s motion moot.52
The Order does not speak to the statute of limitations because it was not raised as a
grounds for dismissal; after all, the government sought dismissal on improper venue
and, in the alternative, on the merits. Moreover, the statue was not at issue as Plaintiff
had filed his action in the incorrect district court, within six months of the November
1, 2017 denial on the merits of Administrative Tort Claim No. TRT-NER-201703305.
Second, Plaintiff argues that he “was on a (IAD) ‘Interstate Agreement’ from
1-25-19 to 04-15-2021” and “was deprived of access to federal laws and access to the
law library,” and that when he “finally got designated back to FCI-Gilmer, on
04/15/2021, Plaintiff was housed in the quarantine unit A-3 for 21 days on 24 hours
lock down without access to anything except for 15 minute showers on Monday,
Wednesday and Fridays.”53
Plaintiff’s conclusory statement provides no support for this Court to find that
he diligently pursued her FTCA claim against the United States. While “[t]he
diligence required for equitable tolling purposes is ‘reasonable diligence,’ not
‘maximum feasible diligence’,” Holland v. Florida, 560 U.S. at 653 (internal citations
and quotation marks omitted), the undisputed evidence of record in this action reflects

51
52
53

Doc. 23-4 at 2.
Id.
Doc. 26 at 1.
12

that Plaintiff did not exercise any diligence in pursuing his FTCA claim in court, let
alone “reasonable diligence”. In fact, I find it incredulous that Plaintiff was deprived
of access to the law library or to the federal courts for over two years. Plaintiff’s own
docket sheet reveals that he was able to litigate his case in the District of New
Hampshire. Within the time frame of January 25, 2019 to April 15, 2021, Plaintiff
was able to file a motion to stay (filed on July 8, 2019), two motions for enlargement
of time (filed on August 12, 2019 and September 23, 2019), a motion to withdraw his
complaint (filed on October 7, 2019), and finally, a motion for the return of filed
documents (filed by Plaintiff on October 30, 2020).54
Moreover, Plaintiff’s October 23, 2020 transcript of proceedings before the
Magistrate Judge Richard D. Raspallo, reveal the following regarding access to the
law library:
THE COURT: Well, that is something that I know can be resolved. Ms.
Dubois, maybe if you call Ms. Kelly, the chief legal counsel for the
Department of Corrections, she can arrange to make sure that Mr.
Lassegue has access to the law library because he’s pro se.
MS. DUBOIS: So, I actually called and talked to Ms. Kelly yesterday.
She is the legal counsel for DOC. She put me in contact with Deputy
Warden Lyons. So, I transported the disks that he’s looking for of the
surveillance. That has been conveyed to Ms. Kelly who is going to get it
to the Deputy Warden Lyons, and Mr. Lassegue will be able to review
those on the DOC computer. I did reach out to him yesterday just to
ensure that because he is pro se he should have access to the law library.
I do agree with your Honor.
THE COURT: Not just obviously for the disks, but for him to access the
law library for his research.

54

Doc. 23-2 at 2-5.
13

MS. DUBOIS: Correct. But I did proactively get a hold of Kathy Kelly
to make sure that that could occur, and they would facilitate that. I will
make sure that does happen. I did also make copies.55
Furthermore, Plaintiff cannot escape his lack of diligence by merely claiming
that he had no access to the law library or the courts. Plaintiff does not assert that
there was ever a specific time he requested the use of the law library and was denied
use or attempted to file a civil action regarding Administrative Tort Claim No. TRTNER-2017-03305 and his efforts were rebuked. As a result, the record is clear that
Plaintiff completely neglected to exercise diligence to preserve his legal rights and to
pursue his FTCA action in court.
Although the Court need not address the extraordinary circumstance prong of
the equitable tolling analysis where Plaintiff has failed to satisfy the diligence prong,56
the Court will touch on this briefly. To meet the second prong of the equitable tolling
test, a litigant must show that the circumstances which caused that litigant’s delay “are
both extraordinary and beyond its control.”57 “In non-capital cases, attorney error,
miscalculation, inadequate research, or other mistakes have not been found to rise to
the ‘extraordinary’ circumstances required for equitable tolling.”58
Preliminarily, for the reasons set forth in analyzing the diligence prong, it is
evident that the circumstances which caused Plaintiff’s delay were not beyond his

55
56
57
58

Doc. 34-2 at 29.
Menominee Indian Tribe of Wis., 136 S.Ct. at 755.
Menominee Indian Tribe, 136 S.Ct. at 756 (emphasis in original).
Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001).
14

control.59 The Plaintiff’s filings in the District of New Hampshire civil action and his
discussions on the record at his October 23, 2020 hearing before Judge Raspallo
clearly demonstrate that Plaintiff was not faced with “extraordinary” circumstances
that prevented him from being able to file a civil action in this Court within six
months of the November 20, 2019 Order dismissing his case from the District of New
Hampshire. Consequently, he has established no basis for this Court to find
“extraordinary” circumstances and apply the extraordinary remedy of equitable
tolling.
As Plaintiff has not established that he diligently pursued his rights and that
some extraordinary circumstance stood in his way and prevented timely filing,
Plaintiff's FTCA claim is not entitled to equitable tolling and the United States is
entitled to summary judgment.
B.

Bivens Claim

Plaintiff’s complaint contains the following Bivens claim:
Insofar, Plaintiff’s Eighth and Fourteenth Amendment rights were
violated. First, Plaintiff’s Eighth Amendment right was violated when
the BOP employees neglected his need for medical assistance.
Specifically, after the Plaintiff was assaulted by several inmates at USPAllenwood, the only aftercare that they provided was rinsing the mace
that was inadvertently sprayed on him off. They then placed him in the
Special Housing Unit (SHU). Plaintiff made several attempts to obtain
medically treatment but was consistently and intentionally ignored by
these BOP employees. Plaintiff was left to bear and suffer the pain
which resulted from his facial and neck injuries. Second Plaintiff’s
59

See D.J.S.-W, 962 F.3d at 751 (recognizing that “diligence” and “extraordinary
circumstances” are distinct elements but explaining that “prior [Third Circuit] case law
[which] may appear to have blended the two components, ... is merely a reflection of the
fact that, in practice, the two elements often go hand in hand.”).
15

Fourteenth Amendment right was violated because generally applicable
constitutional guarantees, including due process and equal protection
rights were abandoned. Thus, Plaintiff was deprived of such rights and
entitled to the relief requested.60
The United States, states that at present, no individual defendant has requested
representation approval because, although service was ordered by this Court, no
individual Defendant has been alleged to be involved in any potentially actionable
conduct.61 In his opposition brief, Lassegue identifies several individuals who he
asserts he is bringing claims against under the Eighth Amendment.62 While
Defendant correctly argues that Plaintiff cannot amend a pleading in an opposition
brief,63 Plaintiff’s Bivens claim suffers from a greater defect: the action is barred by
the statute of limitations.
A District Court can raise the issue of the statute of limitations sua sponte at the
screening stage.64 While a plaintiff is not required to plead that the claim has been
brought within the statute of limitations,65 the Supreme Court observed in Jones v.
Bock, 549 U.S. 199, 215 (2007), that if the allegations of a complaint, “show that
relief is barred by the applicable statute of limitations, the complaint is subject to

60
61
62
63

64

65

Doc. 1 at 7.
Doc. 36 at 11.
Doc. 34 at 4.
Roman v. Geisinger W.V. Medical Center, Civ. No. 3:20-45, 2021 WL 1173000 *2
(M.D.Pa. Mar. 29, 2021) (citing Guevara v. Elizabeth Public Schools, 2019 WL 3244592,
*4 (D. N.J. July 18, 2019) (citing Pa. ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173,
181 (3d Cir. 1988)).
See Hunterson v. Disabato, 532 F. App’x 110, 111-12 (3d Cir. 2007) (“[A] district court
may sua sponte dismiss a claim as time-barred under 28 U.S.C. § 1915A(b)(1) where it is
apparent from the complaint that the applicable statute of limitations has run.”).
Ray v. Kertes, 285 F.3d 287, 297 (3d Cir. 2002)
16

dismissal for failure to state a claim.” The same principle applies to screening
complaints under the PLRA.66 The Court recognizes that “[a] § 1915(e) screening
determination is a preliminary and interlocutory holding, subject to revision at any
time prior to entry of final judgment.”67
Under Pennsylvania law, there is a two-year statute of limitations period for
personal-injury torts.68 Because a § 1983 claim is characterized as a personal-injury
claim, such claims are governed by the applicable state’s statute of limitations for
personal-injury claims.69
The limitation period begins to run on the accrual date, which is governed by
federal law.70 Under federal law, a claim accrues when the facts which support the

66

67

68
69
70

See Whitenight v. Commonwealth of Pennsylvania State Police, 674 F. App’x. 142, 144
(3d Cir. 2017) (“When screening a complaint under § 1915, a district court may sua sponte
dismiss the complaint as untimely under the statute of limitations where the defense is
obvious from the complaint and no development of the factual record is required.”); Paluch
v. Secretary Pennsylvania Dept. of Corrections, 442 F. App’x. 690, 694 n. 2 (3d Cir. 2011)
(“Although the statute of limitations applicable to § 1983 actions is an affirmative defense,
which may be waived by the defendant, it is appropriate to dismiss sua sponte under §
1915(e)(2) a complaint whose untimeliness is apparent from the face of the record”);
McPherson v. United States, 2010 WL 3446879 at *4 (3d Cir. Sept.2, 2010) (“[W]hen a
statute-of-limitations defense is apparent from the face of the complaint, a court may sua
sponte dismiss the complaint pursuant to 28 U.S.C. § 1915 or 28 U.S.C. § 1915A”); see
also Archie v. City of Newark, No. CIV. 12–3657 FSH, 2012 WL 2476229, at *3 (D.N.J.
June 27, 2012) (dismissing complaint as time barred under sua sponte screening authority).
Richardson v. Cascade Skating Rink, No. 19-08935, 2020 WL 7383188, at *2, 2020 U.S.
Dist. LEXIS 236296, at *4-5 (D.N.J. Dec. 16, 2020)(quoting Magruder v. Grafton Corr.
Inst., No. 19-1980, 2020 WL 2814352, at *3, 2020 U.S. Dist. LEXIS 93926, at *7-8 (N.D.
Ohio April 1, 2020
42 Pa. Cons. Stat. § 5524.
See Wallace v. Kato, 549 U.S. 384, 387 (2007); see also Cito v. Bridgewater Township
Police Dept., 892 F.2d 23, 25 (3d Cir. 1989).
Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009).
17

claim reasonably should have become known to the plaintiff.71 “The determination of
the time at which a claim accrues is an objective inquiry; [courts] ask not what the
plaintiff actually knew but what a reasonable person should have known.”72
Importantly, accrual is not tied to whether the potential claimant knew or should have
known that the injury constitutes a legal wrong.73 Rather, “a cause of action accrues
when the fact of injury and its connection to the defendant would be recognized by a
reasonable person.”74 Accordingly, “[a]s a general matter, a cause of action accrues at
the time of the last event necessary to complete the tort, usually at the time the
plaintiff suffers an injury.”75 Furthermore, “the rule that a cause of action accrues
upon discovery of the injury does not require that a plaintiff have identified every
party who may be liable on its claim.”76
Judged by these benchmarks, Lassegue’s Bivens action is plainly time-barred.
Plaintiff’s complaint reveals that his Eighth and Fourteenth Amendment
Constitutional claims are born out of an incident that occurred on June 19, 2015 in
which Plaintiff suffered injuries when he was assaulted by other inmates at USP-

71

72
73
74
75
76

Sameric Corp. v. City of Phila., 142 F.3d 582, 599 (3d Cir. 1998); Cetel v. Kirwan Fin.
Grp. Inc., 460 F.3d 494, 507 (3d Cir. 2006) (quoting Mathews v. Kidder Peabody & Co.,
260 F.3d 239, 252 (3d Cir. 2001)); see also Large v. County of Montgomery, 307 F. Appx.
606, 606 (3d Cir. 2009).
Kach, 589 F.3d at 634.
Giles v. City of Philadelphia, 542 F. App’x. 121, 123 (3d Cir. 2013) (citing Sandutch v.
Muroski, 684 F.2d 252, 254 (3d Cir. 1982)).
Kriss v. Fayette Cty., 827 F. Supp. 2d 477, 484 (W.D. Pa. 2011) aff’d, 504 F. App’x. 182
(3d Cir. 2012).
Kach, 589 F.3d at 634.
Graff v. Kohlman, 28 F. App’x. 151, 154 (3d Cir. 2002) (citing New Castle County v.
Halliburton NUS Corp., 111 F.3d 1116, 1125 (3d Cir. 1997)).
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Allenwood. This incident certainly occurred more than two years prior to the August
25, 202177 filing of the instant action. “A complaint is subject to dismissal for failure
to state a claim on statute of limitations grounds only when the statute of limitations
defense is apparent on the face of the complaint.”78
Because the statute of limitations defense is apparent on the face of Lassegue’s
complaint, it is subject to dismissal as legally frivolous pursuant to the Court's
screening authority under 28 U.S.C. § 19159(e)(2)(B)(i) and § 1915A(b)(1).
Moreover, as the complaint fails to reveal any ground for equitable tolling of the
statute of limitations,79 it will be dismissed with prejudice.80
III.

CONCLUSION
Based on the foregoing, the Defendant’s Motion to Dismiss, or in the

alternative for Summary Judgment, will be granted as to Plaintiff’s FTCA claim. The

77

78
79

80

The Court notes that Plaintiff’s complaint was signed on August 10, 2021 and his mailing
envelope is postmarked August 25, 2021. Thus, even providing Plaintiff the benefit of the
signature and postmark date, does not bring his complaint within the required June 19,
2017 timely file date. See Houston v. Lack, 487 U.S. 266 (1988) (finding that the
computation of time for complaints filed by pro se inmates is determined by the “mailbox
rule”).
Wisniewski v. Fisher, 857 F.3d 152, 157 (3d Cir. 2017).
Equitable tolling “is only appropriate ‘(1) where the defendant has actively misled the
plaintiff respecting the plaintiff's cause of action; (2) where the plaintiff in some
extraordinary way has been prevented from asserting his or her rights; or (3) where the
plaintiff has timely asserted his or her rights mistakenly in the wrong forum.’ ” Omar v.
Blackman, 590 Fed.Appx. 162, 166 (3d Cir. 2014) (quoting Santos ex rel. Beato v. United
States, 559 F.3d 189, 197 (3d Cir. 2009)). The Court has already established that Plaintiff
is not entitled to equitable tolling with respect to his FTCA claim. The same analysis
applies to his Bivens claim.
Ostuni v. Wa Wa’s Mart, 532 Fed.Appx. 110, 112 (3d Cir. 2013) (per curiam) (affirming
dismissal with prejudice due to expiration of statute of limitations).
19

Court will dismiss Plaintiff’s Bivens complaint as legally frivolous as time-barred
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and § 1915A(b)(1).
An appropriate Order follows.
BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
Chief United States District Judge

20