David Webb v. Perkiomen School; Jane Does; John Does

CLD-007 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-3208
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DAVID WEBB,
Appellant
v.
PERKIOMEN SCHOOL; JANE DOES; JOHN DOES
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 2:09-cv-02640)
District Judge: Honorable Cynthia M. Rufe
____________________________________
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
October 9, 2009
Before: BARRY, FISHER and COWEN , Circuit Judges
(Opinion filed October 19, 2009)
_________
OPINION
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PER CURIAM
David Webb, proceeding pro se, appeals the order of the United States District
Court for the Eastern District of Pennsylvania dismissing his personal injury action as
frivolous. We will dismiss the appeal pursuant to 28 U.S.C. § 1915(e)(2)(B).

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In June 2009, Webb initiated this diversity action against Perkiomen School by
filing a complaint and motion for leave to proceed before the district court in forma
pauperis. Webb, a resident of South Dakota, alleged that, in May 1981, while a boarding
student at the Perkiomen School, he was assaulted by a group of students. He alleged that
the Perkiomen School employees never reported the incident to the police or to his legal
guardian. On June 30, 2009, the district court granted Webb leave to proceed in forma
pauperis but dismissed the complaint pursuant to 28 U.S.C. § 1915(e) on statute of
limitations grounds. Webb timely appealed the ruling to this Court.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, and exercise
plenary view over the district court’s sua sponte dismissal. See Allah v. Seiverling, 229
F.3d 220, 223 (3d Cir. 2000). Because we have granted Webb in forma pauperis status
pursuant to 28 U.S.C. § 1915, we review this appeal for possible dismissal pursuant to 28
U.S.C. § 1915(e)(2)(B). We will dismiss an appeal under § 1915(e) if it lacks an arguable
basis in fact or law. Neitzke v. Williams, 490 U.S. 319, 325 (1989).
The district court correctly dismissed Webb’s claim under § 1915(e)(2)(B), as his
claim lacked an arguable basis in law. The statute of limitations for Webb’s action is
governed by the personal injury statute of limitations in Pennsylvania, the state in which
his cause of action accrued. That period is two years, subject to any state law tolling
provisions which are not inconsistent with federal law. 42 Pa. Cons. Stat Ann. § 5524;
see also Lake v. Arnold, 232 F.3d 360, 366 (3d Cir. 2000). Although the statute of
2.

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limitations is an affirmative defense, a district court may sua sponte dismiss a complaint
under § 1915(e) where the defense is obvious from the complaint and no development of
the factual record is required. See Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir.
2006); Eriline Co. S.A. v. Johnson, 440 F.3d 648, 656-57 (4th Cir. 2006); Dellis v. Corr.
Corp. of Am., 257 F.3d 508, 511 (6th Cir. 2001); Pino v. Ryan, 49 F.3d 51, 53 (2d Cir.
1995).
Here, the incident underlying Webb’s complaint occurred in 1981, making it
apparent from the face of the complaint that the two-year statute of limitations expired
well before he filed suit in 2009. In his argument in support of his appeal, Webb asserts
that the statute of limitations should be equitably tolled because the defendants
fraudulently concealed the assaults by failing to notify the local police and his legal
guardian. However, equitable tolling occurs where the defendants have intentionally
misinformed or concealed information from the plaintiff, and the limitations period begins
when the plaintiff knows or had reason to know of the injury forming the basis for the
action. Sameric Corp. v. City of Phila., 142 F.3d 582, 599 (3d Cir. 1998); Walters v.
Ditzler, 227 A.2d 833, 835 (Pa. 1967). In his complaint, Webb alleges details of the
assault, including awakening in a hospital room in May 1981. He also alleges that he has
sustained many years of pain and suffering and subsequent injuries since the original
injury in 1981. In other words, Webb expressly admits in his complaint that he learned of
3.

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To the extent that Webb may have been a minor at the time of the assaults,1
Pennsylvania’s “minor tolling statute,” which tolls the two-year statute of limitations
period until the minor plaintiff reaches the age of 18, also does not apply, since Webb
filed more than twenty years following the incident. See 42 Pa. Cons. Stat. Ann. §
5533(b); see also Fancsali ex rel. Fancsali v. Univ. Health Ctr. of Pittsburgh, 761 A.2d
1159, 1164 (Pa. 2000). 4.
his injuries more than two years before he filed this lawsuit in June 2009.1
Accordingly, Webb’s claims were filed well beyond the expiration of the
applicable statute of limitations and are now time barred. We find that there was no need
to provide Webb an opportunity to amend his complaint because any amendment would
have been futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002)
(noting that amendment “must be permitted . . . unless it would be inequitable or futile”).
Because we conclude that Webb’s appeal lacks an arguable basis in law, we dismiss it
pursuant to 28 U.S.C. § 1915(e)(2)(B).

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