BLD-147                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 10-3130
                                      ___________

                            RAFAEL RODRIGUEZ-PEREZ,
                                              Appellant
                                      v.

                              MR. CLARK, Counselor
                      ____________________________________

                    On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                               (D.C. Civil No. 09-cv-01688)
                    District Judge: Honorable Christopher C. Conner
                      ____________________________________

        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
                                   March 24, 2011
        Before: SLOVITER, JORDAN and GREENAWAY, JR., Circuit Judges

                             (Opinion filed: April 13, 2011)
                                      _________

                                       OPINION
                                       _________

PER CURIAM

      In August 2009, Rafael Rodriguez-Perez, proceeding pro se and in forma

pauperis, filed a civil rights complaint, which he subsequently amended twice. In each

filing, he presented essentially the same claim. Namely, he alleged that on April 5, 2007,

the defendant, a prison counselor, assaulted him by grabbing his neck, slamming him
against a wall, and screaming at him when he was on his way to his job in the federal

prison in Pennsylvania where he was an inmate.

       On January 4, 2010, the Magistrate Judge entered an order to notify Rodriguez-

Perez that it appeared that he had filed his complaint outside the limitations period. The

Magistrate Judge invited him to file a brief to explain why the case should not be

dismissed. The Magistrate Judge mailed the order to Rodriguez-Perez, but it was

returned by the U.S. Postal Service as undeliverable. On the same day, apparently from

the same address as was on file, Rodriguez-Perez submitted a letter inquiring about some

papers he had filed. The Magistrate Judge then remailed the January order to him.

Rodriguez-Perez submitted a letter discussing cases he had filed in other courts.

       On February 11, 2010, the Magistrate Judge filed a report and recommendation.

Considering the matter under 28 U.S.C. § 1915(e)(2)(B)(ii), the Magistrate Judge

concluded that Rodriguez-Perez had failed to state a claim upon which relief could be

granted because the complaint was barred by the applicable statute of limitations.

Noting that Rodriguez-Perez had been given the opportunity to amend his complaint and

had failed to state an actionable claim after two amendments, the Magistrate Judge stated

that further amendment would be futile. Nonetheless, the Magistrate Judge invited

Rodriguez- Perez to address the issue in objections. The U.S. Postal Service returned as

undeliverable the copy of the report and recommendation sent to Rodriguez-Perez.

However, after Rodriguez-Perez wrote the District Court from another address, the report

and recommendation was sent to him again and he was permitted additional time to file
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objections. He filed a document titled “Exhibit A” in which he, among other things,

described the circumstances of the alleged injury of April 5, 2007. The District Court

ordered Rodriguez-Perez to indicate whether he intended “Exhibit A” to serve as his

objections, and if he did not so intend, to file objections before April 19, 2010. That

order was also returned to the District Court as undeliverable.

       On May 28, 2010, the District Court adopted the report and recommendation and

dismissed the amended complaint. The District Court noted that although Rodriguez-

Perez had not filed objections, it had reviewed the Magistrate Judge’s report and

recommendation before adopting it. The District Court also noted that it and the

Magistrate Judge repeatedly extended filing deadlines and notified Rodriguez-Perez of

the necessity of participating in the litigation. The District Court further noted that

Rodriguez-Perez had not updated the court with his current address.

       Rodriguez-Perez appeals. We have jurisdiction under 28 U.S.C. § 1291. We

exercise plenary review over the dismissal of his claims. See Allah v. Seiverling, 

, 223 (3d Cir. 2000). We review the denial of leave to amend for abuse of

discretion. See Lum v. Bank of Am., 

, 223 (3d Cir. 2004).

       On review, we will dismiss Rodriguez-Perez’s appeal pursuant to 28 U.S.C. §

1915(e)(2)(B)(i) because it does not have an arguable basis in fact or law. See Neitzke v.

Williams, 

, 325 (1989). The District Court did not err in dismissing

Rodriguez-Perez’s complaint under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a

claim on which relief can be granted because it was apparent from the face of the
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complaint that the claims were time-barred.

       If the allegations, taken as true, show that relief is barred by the applicable statute

of limitations, a complaint is subject to dismissal for failure to state a claim. See Jones v.

Bock, 

, 215 (2007); see also, e.g., Bethel v. Jendoco Constr. Corp., 

, 1174 (3d Cir. 1978). The running of the statute of limitations is an affirmative

defense. See Fed. R. Civ. P. 8(c). However, where that defense is obvious from the face

of the complaint and no development of the record is necessary, a court may dismiss a

time-barred complaint sua sponte under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a

claim. See, e.g., Fogle v. Pierson, 

, 1258 (10th Cir. 2006).

       In this case, Rodriguez-Perez’s claims were subject to Pennsylvania’s two-year

statute of limitations for personal injury actions. See Kost v. Kozakiewicz, 

,

189-90 (3d Cir. 1993); Napier v. Thirty or More Unidentified Fed. Agents, Employees or

Officers, 

, 1087 n.3 (3d Cir. 1988); see also 42 Pa.C.S. § 5524. His cause

of action accrued when he knew or should have known of the injury upon which his

action is based. See Sameric Corp. of Delaware v. City of Philadelphia, 

,

599 (3d Cir. 1998). In this case, Rodriguez-Perez knew or should have known of any

injury at the time of the alleged assault in April 2007. Because he filed his complaint

more than two years later, in August 2009, his complaint was time-barred and subject to

dismissal. Although the Magistrate Judge invited Rodriguez-Perez to address the statute

of limitations issue in objections, he did not do so.

       In short, the District Court did not err in dismissing Rodriguez-Perez’s complaint
                                              4
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). The District Court also did not abuse its

discretion in declining to allow Rodriguez-Perez to amend his complaint for the third

time. Not only did the District Court allow Rodriguez-Perez to amend his complaint

twice, it also repeatedly tried to engage Rodriguez-Perez in the litigation even though he

did not consistently update his mailing address or submit documents responsive to the

issued orders. To the extent that he pressed his claim, Rodriguez-Perez sought to pursue

an action based on time-barred claims that accrued in April 2007. As the District Court

concluded, leave to amend was futile. For these reasons, we will dismiss Rodriguez-

Perez’s appeal pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).




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