ALD-115                                                    NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              ___________

                                  No. 19-1450
                                  ___________

                              JOSE MONTALBAN,
                                         Appellant

                                        v.

                 MR. POWELL; MR. VERBYLA WILLIAMS;
          MR. JASON GLOSSENGER; MS. PATRICIA BURGERHOLFF;
                MR. MODDROFF; MR WALTER DOBUSHAK;
                MR. M. KABONICK; MR. JARRETT TUTTLE;
                ANTHONY PEDONE; MR. MARK BRENNAN;
                    COREY VRABEL; C.O. GUILLARD;
                        C.O. SNEE; C.O. SCHULTZ;
                      UNITED STATES OF AMERICA;
                       MACCA, Correctional Officer;
                        DUSTIN M. COOK, PSY, D.;
                 CAROLINE M. JOHANSON, PHD. Staff Psych;
                             SIA JOHN GINTZ
                  ____________________________________

                 On Appeal from the United States District Court
                     for the Middle District of Pennsylvania
                      (D.C. Civil Action No. 17-cv-00212)
                  District Judge: Honorable James M. Munley
                  ____________________________________

     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
                                February 13, 2020
           Before: MCKEE, SHWARTZ, and PHIPPS, Circuit Judges

                          (Opinion filed: April 1, 2020)
                                  _________
                                         OPINION*
                                         _________

PER CURIAM

       Appellant Jose Montalban, proceeding pro se and in forma pauperis, appeals from

the District Court’s order granting summary judgment to the defendants. Because the

appeal presents no substantial question, we will summarily affirm the judgment of the

District Court.

       On January 27, 2017, Montalban filed a civil rights lawsuit against nineteen

Federal Bureau of Prison staff members at Canaan United States Penitentiary (“Canaan”),

where he was incarcerated at the time, relying on Bivens v. Six Unknown Named Agents

of Fed. Bureau of Narcotics, 

(1971). He amended his complaint once and

supplemented it to include three defendants in place of John Does. The amended

complaint alleged that on December 28, 2012, several correctional officers used

excessive force against Montalban after he assaulted his work supervisor. Montalban

also claimed that Canaan personnel acted with deliberate indifference to his medical

needs in the wake of the altercation. Additionally, Montalban claimed that correctional

officers interfered with his legal materials in July 2014.

       The defendants moved to dismiss the amended complaint or, in the alternative, for

summary judgment, arguing, inter alia, that Montalban’s claims were barred by the

statute of limitations. The District Court converted the motion to a motion for summary


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

                                              2
judgment and provided Montalban with notice and an opportunity to submit exhibits.

After reviewing the record, the District Court concluded that Montalban’s claims were

time-barred and entered summary judgment for the defendants.

         We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise

plenary review over a district court’s grant of summary judgment. Blunt v. Lower

Merion Sch. Dist., 

, 265 (3d Cir. 2014). Summary judgment is appropriate

“if the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine

dispute of material fact exists if the evidence is sufficient for a reasonable factfinder to

return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 

, 248 (1986). In evaluating a motion for summary judgment, “all justifiable

inferences are to be drawn in . . . favor” of the non-moving party.

However,

“the non-movant may not rest on speculation and conjecture in opposing a motion for

summary judgment.” Ramara, Inc. v. Westfield Ins. Co., 

, 666 (3d Cir.

2016).

         We conclude that the District Court properly entered summary judgment for the

defendants because no reasonable factfinder could determine that Montalban’s lawsuit

was timely filed. Bivens claims are governed by a state’s statute of limitations for

personal injury claims. Dique v. N.J. State Police, 

, 185 (3d Cir. 2010).

Pennsylvania’s limitations period is two years. 42 Pa. Cons. Stat. § 5524. Montalban

became aware of his injuries on December 28, 2012 and filed a complaint more than four

years later, on January 27, 2017. See Bohus v. Beloff, 

, 924 (3d Cir. 1991)

                                               3
(explaining that the statute of limitations begins to run when a plaintiff knows that he has

been injured).1 Accordingly, his claims are time-barred.

       As the District Court correctly determined, the time Montalban spent pursuing

Canaan’s grievance process did not render his complaint timely filed. See Pearson v.

Sec’y Dep’t of Corr., 

, 603 (3d Cir. 2015) (explaining that the statute of

limitations is tolled while a prisoner exhausts administrative remedies under the Prison

Litigation Reform Act). The undisputed record shows that Montalban did not file a

grievance concerning his excessive use of force or deliberate indifference claims prior to

January 2016, more than a year after the statute of limitations expired. Montalban’s

assertion that the grievance process was made unavailable to him is unsupported by the

record, and does not account for the fact that he did not file a lawsuit until January 2017.

Additionally, while the grievances Montalban filed relevant to his legal property claim

did toll the statute of limitations, it did not do so long enough to make his complaint

timely as to those claims. See ECF No. 67 at 20–21 (calculating the tolled period as to

the legal property claim).

       Because this appeal presents no substantial question, we will affirm. Montalban’s

motion for appointment of counsel is denied, see Tabron v. Grace, 

, 155–56

(3d Cir. 1993), as is his motion to supplement the District Court record, see Fed. R. App.




1
  To the extent Montalban argued that he did not discover his injuries until January 2013,
when he first received x-rays indicating a fractured skull, that argument is unavailing
because a “cause of action accrues even though the full extent of the injury is not then
known or predictable.” Wallace v. Kato, 

, 392 (2007).
                                              4
P. 10(e). To the extent that he presents any requests for relief in the other documents he

has filed, those motions are denied, as well.




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