Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-18-2005

Wooden v. Eisner
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1725




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Recommended Citation
"Wooden v. Eisner" (2005). 2005 Decisions. Paper 678.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/678


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BPS-338                                                        NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     NO. 05-1725
                                  ________________

                               HERMAN WOODEN, JR.,
                                       Appellant

                                             v.

                         CASE MANAGER, SUSAN EISNER,
                                 LSCI Allenwood
                    _______________________________________

                   On Appeal From the United States District Court
                       For the Middle District of Pennsylvania
                             (D.C. Civ. No. 03-cv-00190)
                       District Judge: Honorable Yvette Kane
                   _______________________________________


          Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                  August 11, 2005

     Before: RENDELL, FISHER AND VAN ANTWERPEN, CIRCUIT JUDGES

                               (Filed August 18, 2005)
                             _______________________

                                     OPINION
                             _______________________

PER CURIAM.

      Herman Wooden, Jr., an inmate at the Federal Correctional Institution in Fairton,

New Jersey (“FCI-Fairton”), filed a pro se complaint pursuant to Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 

(1971), against numerous
prison officials. The District Court found that the complaint did not comply with Federal

Rule of Civil Procedure 20, but granted Wooden leave to amend it, cautioning him that

failure to properly amend would result in dismissal of all claims except the one against

defendant Susan Eisner, a case manager at FCI-Fairton. Thereafter, the District Court

twice-granted Wooden an extension of time to file an amended complaint. When

Wooden failed to properly amend, the District Court dismissed all claims except that

against Eisner. In his surviving claim, Wooden alleged that Eisner denied Wooden access

to the courts by failing to give him time off from his work detail to prepare an appeal for

his 28 U.S.C. § 2255 motion.

       Eisner filed a motion to dismiss, contending that Wooden failed to file his

complaint within the applicable two-year statute of limitations, and that Wooden failed to

exhaust administrative remedies. The District Court granted Eisner’s motion to dismiss,

finding that because Wooden did not properly allege a 42 U.S.C. § 1985 conspiracy, the

five-year statute of limitations in § 1985 does not apply. Moreover, it found that Wooden

knew or should have known of the alleged injury, at the latest, on June 10, 2000, when

the Fourth Circuit Court of Appeals denied rehearing on the appeal of Wooden’s § 2255

motion. Therefore, applying the two-year statute of limitations, the District Court

dismissed the complaint as time-barred. Wooden filed a motion for reconsideration,

further contending that his cause of action did not accrue until December 2002 when he

was “definitely” put on notice that a wrong has been committed and was entitled to



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redress. The District Court rejected this argument, and denied the motion.

       Wooden timely filed this appeal. He has been granted leave to proceed in forma

pauperis on appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291. When an

appellant proceeds in forma pauperis, we must dismiss the appeal if it is “frivolous.” 28

U.S.C. § 1915(e)(2)(B)(I). A frivolous appeal has no arguable basis in law or fact.

Neitzke v. Williams, 

, 325 (1989). After a careful review of the record, we

will dismiss this appeal as frivolous.

       As the District Court explained, a Bivens claim in which the plaintiff is alleging

personal injury has a two-year statute of limitations. See Kost v. Kozakiewicz, 

, 190 (3d Cir. 1993); King v. One Unknown Fed. Correctional Officer, 

,

913 (7th Cir. 2000) (noting that same state statute of limitations applies to all Bivens and

§ 1983 claims); 42 Pa. Cons. Stat. § 5524. A Bivens claim accrues when the plaintiff

knows, or has reason to know, of the injury that forms the basis of the action. Sameric

Corp. of Del. v. City of Phila., 

, 599 (3d Cir. 1998). Wooden’s action

against Eisner accrued, at the latest, on June 10, 2000, upon the Fourth Circuit Court of

Appeals’ denial of rehearing on the appeal of Wooden’s § 2255 motion. Because

Wooden filed the instant action on January 31, 2003, he was beyond the statutory period,

and thus his Bivens claim against the Eisner was properly dismissed as time barred.

       In conclusion, because Wooden’s appeal lacks arguable merit in fact or law, we

will dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B)(I).



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