Geoffrey Willard Atwell v. Mark S. Schweiker

ALD-315 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-2329
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GEOFFREY WILLARD ATWELL,
Appellant
v.
MARK S. SCHWEIKER; EDWARD G. RENDELL; JUDITH B. SELVEY; SARAH
HART, Pennsylvania Department of Corrections Chief Counsel; RANDY SEARS,
Pennsylvania Department of Corrections Deputy Chief Counsel; MICHAEL FARNAN,
Pennsylvania Department of Corretions Assistant Chief Counsel; THOMAS CORBETT,
JR.; JAMES O. THOMAS, JR.; GREGORY R. NEUHAUSER; R. DOUGLAS
SHERMAN; ROBERT A. GREEVY and ATTORNEY GENERAL D. MICHAEL
FISHER
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 06-cv-01048)
District Judge: Honorable Sylvia H. Rambo
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
September 17, 2009
Before: SLOVITER, FUENTES and JORDAN, Circuit Judges
(Opinion filed: September 29, 2009 )
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OPINION
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PER CURIAM
Geoffrey Atwell appeals the District Court’s order granting appellees’ motion to
dismiss his complaint. For the reasons below, we will affirm.
The procedural history of this case and the details of Atwell’s claims are well
known to the parties and need not be discussed at length. Briefly, Atwell filed a
complaint pursuant to 42 U.S.C. § 1983 alleging that appellees failed to investigate his
claims that he was being held past the expiration of his maximum sentence. The District
Court concluded that Atwell’s claims were barred by Heck v. Humphrey, 512 U.S. 477,
487 (1994), and by the statute of limitations. Atwell filed a timely notice of appeal.
We have jurisdiction under 28 U.S.C. § 1291. We need not address whether the
complaint is barred by Heck because we agree with the District Court that it was
untimely. Claims brought pursuant to 42 U.S.C. § 1983 are subject to the state statute of
limitations for personal injury actions. Wilson v. Garcia, 471 U.S. 261, 266-67 (1985).
In Pennsylvania, the statute of limitations for a personal injury action is two years. 42
Pa.C.S.A. § 5524. A cause of action accrues when the plaintiff knows or has reason to
know of the injury that constitutes the basis of the cause of action. Sameric Corp. of
Delaware, Inc. v. City of Philadelphia, 142 F.3d 582, 599 (3d Cir. 1998).
Atwell argues that his sentence should have expired on October 19, 2002. In his
opposition to the appellees’ motion to dismiss, Atwell argued that his complaint was
timely because he had to exhaust the prison administrative grievance process. In a

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grievance response dated January 9, 2003, a prison official explained the calculation of
the sentences and informed Atwell that the maximum expiration date of his sentences was
May 22, 2004. The Acting Chief Grievance Coordinator denied the final review of that
grievance on June 20, 2003. Thus, by June 2003, Atwell had finished exhausting his
administrative remedies and knew that prison officials had calculated the maximum
expiration date of his sentences to be May 22, 2004. His complaint, postmarked on May
20, 2006, was filed beyond the two-year statute of limitations.
Atwell argues that his complaint was timely filed within two years of his release
from prison on May 22, 2004. Because Atwell knew of his alleged injury at the time it
was inflicted, the continuing wrong theory does not apply. See Barnes v. American
Tobacco Co., 161 F.3d 127, 154 (3d Cir. 1998) (“We understand Fowkes[v. Pennsylvania
R.R. Co., 264 F.2d 397 (3d Cir. 1959)] to mean that continuing conduct of defendant will
not stop the ticking of the limitations clock begun when plaintiff obtained requisite
information. On discovering an injury and its cause, a claimant must choose to sue or
forego that remedy.”) (quoting Kichline v. Consolidated Rail Corp., 800 F. 2d 356, 360
(3d Cir. 1986)).
Summary action is appropriate if there is no substantial question presented in the
appeal. See Third Circuit LAR 27.4. For the above reasons, we will summarily affirm
the District Court’s order. See Third Circuit I.O.P. 10.6.

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