BLD-237                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 13-4416
                                      ___________

                                     JOSE G. CRUZ,
                                                Appellant

                                             v.

       SCI-SMR DIETARY SERVICES; SUPERINTENDENT SOMERSET SCI
                  ____________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                             (D.C. Civ. No. 3-13-cv-00031)
                              District Judge: Kim R. Gibson
                      ____________________________________

         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
                                    April 24, 2014

            Before: AMBRO, CHAGARES and VANASKIE, Circuit Judges

                                  (Filed: May 5, 2014)
                                  _________________

                                      OPINION
                                  _________________

PER CURIAM

       Jose G. Cruz, a state prisoner proceeding pro se, appeals from an order of the

District Court dismissing his complaint. For the reasons that follow, we will summarily

affirm the judgment of the District Court.
       Cruz filed a 42 U.S.C. § 1983 action in the District Court in February 2013

alleging that his constitutional rights were violated by the Defendants during incidents

which occurred while he was in custody at the State Correctional Institution at Somerset

(“SCI-Somerset”). He first claimed that the Defendants violated his Eighth Amendment

rights in May 2010 when they allegedly fed him tainted chicken salad which caused him

to experience severe gastro-intestinal illness. Cruz asserted that the Defendants did not

adequately treat his illness until the end of July 2010. Cruz also alleged that on January

2, 2012, guards at the prison failed to supervise his cell while he was away at lunch, in

violation of established procedure. Apparently, Cruz’s cell door was not properly locked,

which allegedly enabled a fellow prisoner to gain access to his cell and steal items worth

approximately $175.80.

       Acting prior to service, the Magistrate Judge issued a report, recommending that

the complaint be dismissed pursuant to 28 U.S.C. § 1915A for failure to state a claim.

She determined that Cruz’s Eighth Amendment claim was barred by the applicable

statute of limitations because Cruz did not file his complaint until February 11, 2013.

Construing Cruz’s second claim as one alleging deprivation of property without due

process in violation of the Fourteenth Amendment, the Magistrate Judge determined that

the claim was not actionable because sufficient post-deprivation remedies were available

to Cruz.

       In an order entered October 31, 2013, the District Court adopted the report and

recommendation and dismissed the complaint. The District Court noted that although
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Cruz had not filed objections, it had independently reviewed the record and considered

the Magistrate Judge’s report and recommendation before adopting it.1 Cruz appeals.

       We have jurisdiction under 28 U.S.C. § 1291. Our review is plenary. See Allah v.

Seiverling, 

, 223 (3d Cir. 2000). Upon review, we will summarily affirm

because no substantial issue is presented on appeal. See 3d Cir. L.A.R. 27.4; 3d Cir.

I.O.P. 10.6.

       We agree that Cruz’s Eighth Amendment claim is time-barred. The statute of

limitations applicable to § 1983 claims in Pennsylvania is two years. See Knoll v.

Springfield Twp. Sch. Dist., 

, 585 (3d Cir. 1985); see also 42 Pa. Cons. Stat.

§ 5524(2). Cruz’s cause of action accrued between May and July 2010, when he was

allegedly injured by the Defendants’ failure to adequately treat his gastro-intestinal

illness. Cruz did not file his complaint until February 11, 2013, more than two years after

the alleged wrongdoing. We agree with the District Court that the injuries Cruz alleged

are of the sort that would have been apparent to him at the time they were committed.

See Sameric Corp. v. City of Philadelphia, 

, 599 (3d Cir. 1998) (“A section

1983 cause of action accrues when the plaintiff knew or should have known of the injury

upon which its action is based.”). Although the statute of limitations is an affirmative

defense, sua sponte dismissal is appropriate when “the defense is obvious from the face

of the complaint and no further factual record is required to be developed.” Fogle v.


1
 Although the District Court granted Cruz’s two requests for an extension to file
objections, he did not ultimately file objections to the report and recommendation.
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Pierson, 

, 1258 (10th Cir. 2006) (citations omitted); Eriline Co. S.A. v.

Johnson, 

, 655–56 (4th Cir. 2006). Although the Magistrate Judge invited

Cruz to address the statute of limitations issue in objections, he did not do so.2 Dismissal

was therefore appropriate.

       The District Court also correctly dismissed Cruz’s apparent Fourteenth

Amendment claim. Procedural due process guarantees that the State will not deprive an

individual of a protected interest in property without due process of law, Parratt v.

Taylor, 

, 537 (1981), overruled on other grounds, Daniels v. Williams, 

(1986), but the United States Supreme Court has held that meaningful post-

deprivation remedies provide sufficient due process for negligent deprivations of

property, 

, and intentional deprivations of property, Hudson v.

Palmer, 

, 533 (1984). The Pennsylvania Department of Corrections

(“DOC”) grievance procedure provides an adequate post-deprivation remedy, see, e.g.,

Tillman v. Lebanon County Correctional Facility, 

, 422 (3d Cir. 2000), and

the existence of this post-deprivation remedy forecloses Cruz’s due process claim.3 We




2
  We note that Cruz stated in his complaint that he did not pursue prison administrative
remedies related to this claim. (See Compl. at p.5.) Thus, even assuming that the
administrative grievance and appeal periods operate to toll the statute of limitations, see,
e.g., Gonzalez v. Hasty, 

, 323-24 (2d Cir. 2001), Cruz was not entitled to
tolling on that basis given that he did not grieve this claim administratively.
3
  Indeed, Cruz indicated in his complaint that he availed himself of the DOC’s internal
grievance procedure to challenge this alleged deprivation of property.
                                               4
note that a common law action for conversion, filed in state court pursuant to 42 Pa.

Cons. Stat. Ann. § 8522(a), (b)(3), also is an adequate post-deprivation remedy.

       Ordinarily, a District Court should not sua sponte dismiss a complaint for failure

to state a claim without providing the plaintiff an opportunity to amend his complaint. As

it appears that amendment would be futile, we conclude that the District Court did not err

in declining to afford Cruz leave to amend. See Grayson v. Mayview State Hosp., 

, 114 (3d Cir. 2002); see also Garvin v. City of Philadelphia, 

, 222

(3d Cir. 2003) (“[A]ny amendment of [the] complaint would have been futile because the

amended complaint could not have withstood a motion to dismiss on the basis of the

statute of limitations.”).

       As the appeal presents no substantial issues, we will summarily affirm the

judgment of the District Court.




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