2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-30-2014

Brenda Braun v. Betty Gonzales

Precedential or Non-Precedential: Non-Precedential

Docket 13-3325

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Recommended Citation

"Brenda Braun v. Betty Gonzales" (2014). 2014 Decisions. Paper 123.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 13-3325

___________

BRENDA LEE BRAUN,

Appellant

v.

BETTY GONZALES; EUCLIDES NUNEZ, SR.

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 5:13-cv-03183)

District Judge: Honorable James Knoll Gardner

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

January 30, 2014

Before: AMBRO, SHWARTZ and SCIRICA, Circuit Judges

(Filed: January 30, 2014)

___________

OPINION

___________

PER CURIAM

In May 2013, Brenda Lee Braun sought to file a complaint in forma pauperis in 

the United States District Court for the Eastern District of Pennsylvania,1alleging that 

 

1

She previously filed, on March 2, 2011, an action based on the same facts in the United 

States District Court for the District of Delaware (Civ. No. 11-cv-00186), but that case 

was dismissed in December 2012 on Braun’s motion to voluntarily dismiss. In March 
2

she injured herself when she slipped and fell in the shower in her apartment in Reading, 

Pennsylvania, on March 7, 2009, at 9:00 in the evening. She maintained that defendant 

Gonzales, apparently the property manager, knew she was disabled and had told her 

before she moved into the apartment that she would put a slip guard and hand rail in the 

tub. She also stated that defendant Nunez, seemingly the owner of the building, came to 

the apartment to check code problems, so he cannot say that he never met her. Braun 

claimed that the defendants, by their action or inaction, violated housing codes and safety 

codes for disabled persons. Seeking $400,000 from each defendant, she also described 

her cause of action as a federal cause of action and a slip-and-fall.

The District Court granted Braun’s application to proceed in forma pauperis and 

dismissed her complaint. The District Court concluded that Braun had failed to state a 

federal claim and otherwise did not present a claim over which the District Court had 

subject-matter jurisdiction. The District Court noted that no claim could be brought in 

diversity because Braun and one of the defendants both lived in Pennsylvania. The 

District Court also denied leave to amend, concluding that amendment would be futile 

because diversity jurisdiction was lacking, Braun raised state law claims, and the statute 

of limitations for any slip-and-fall claim under state law had already run.

Braun appeals. She claims that her complaint was transferred to the Pennsylvania 

District Court from the Delaware District Court and that she is still waiting for her trial 

date. She argues that the Pennsylvania District Court should have allowed her to submit 

 

2013, she moved to reopen that case, but the District Court denied the motion in an order 

from which Braun did not appeal. 
3

her paperwork as evidence and that the Delaware District Court should have sent over all 

her paperwork. She contends that “her rights were not heard.” She appeals the order 

dismissing her complaint, an order identifying a letter she submitted as her notice of 

appeal, an order entered by our Clerk closing her case for failure to prosecute,2and a 

District Court order denying her motion to transfer her case to the Court of Common 

Pleas for Berks County while this appeal was pending. She asks that her District Court 

action be reopened, a trial date be set, and $800,000 in damages be awarded for her pain 

and suffering and slip-and-fall. 

We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review of the order 

dismissing the complaint is plenary. See Nichole Med. Equip. & Supply, Inc. v. 

TriCenturion, Inc., 694 F.3d 340, 347 (3d Cir. 2012); Allah v. Seiverling, 229 F.3d 220, 

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

Lum v. Bank of Am., 361 F.3d 217, 223 (3d Cir. 2004). We cannot review, however, any 

order that the District Court entered after Braun filed her notice of appeal. Cf. Fed. R. 

App. P. 4(a)(4)(B)(ii). We also do not consider Braun’s appeal to the extent that she 

objects to the District Court treating her notice of appeal as her notice of appeal.3 See

Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 333 (1980) (“A party who receives all 

 

2 As is apparent, her case has since been reopened. 

3

To the extent that she seeks reconsideration of a Clerk order, we note that although we 

reopened this case on her motion, there was nothing improper in the dismissal for her 

failure to prosecute as she initially did not file a brief and appendix as directed.
4

that he has sought generally is not aggrieved by the judgment affording the relief and 

cannot appeal from it.”) 

Upon review, we conclude that the District Court properly dismissed Braun’s 

complaint. It is unclear whether Braun was seeking to invoke the Fair Housing Act 

(“FHA”), the Americans with Disabilities Act (“ADA”), and/or the Rehabilitation Act 

(“RA”). Assuming without deciding that these federal statutes could apply to her case, if 

she was seeking relief under them, any claim was clearly time-barred from the face of the 

complaint. 

If a plaintiff’s 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, 549 U.S. 199, 215 (2007); see also, e.g., Bethel v. Jendoco Constr. Corp., 

570 F.2d 1168, 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, 435 F.3d 1252, 1258 (10th Cir. 2006); 

cf. Ball v. Famiglio, 726 F.3d 448, 459-60 (3d Cir. 2013) (ruling that a dismissal for 

failure to state a claim based on an affirmative defense that is clear on the face of a 

complaint can constitute a strike under 28 U.S.C. § 1915(g)). 

The FHA explicitly sets forth a two-year statute of limitations. See 42 U.S.C. 

§ 3613(a)(1)(A) (“An aggrieved person may commence a civil action . . . not later than 2 

years after the occurrence . . . of an alleged discriminatory housing practice . . . .”). 
5

Neither the ADA nor the RA includes an express limitations period, but, as we have 

explained previously, the applicable statute of limitations “is the statute of limitations for 

personal injury actions in the state in which the trial court sits.” Disabled in Action v. 

SEPTA, 539 F.3d 199, 208 (3d Cir. 2008). Accordingly, for Braun’s case, the two-year 

limitations period of 42 Pa. Cons. Stat. § 5524 applies. See id. However, in her 

complaint, she sought relief for something that occurred in March 2009, more than two 

years before she submitted her complaint in May 2013.4 

To the extent that Braun presented a slip-and-fall claim or other claims grounded 

in state law, the District Court did not have an independent basis for subject-matter 

jurisdiction over them. Although a district court can consider some state law claims in 

diversity, complete diversity is required under 28 U.S.C. § 1332. Ruhrgas AG v. 

Marathon Oil Co., 526 U.S. 574, 584 (1999). Braun and one of the defendants are both 

from Pennsylvania, so complete diversity is lacking. [Furthermore, to the extent that 

Braun sought to plead a federal cause of action, it was not actionable.] Accordingly, the 

District Court could decline to exercise supplemental jurisdiction over any state law 

claims. See 28 U.S.C. § 1367(c); De Asencio v. Tyson Foods, Inc., 342 F.3d 301, 309 

(3d Cir. 2003).

 

4

That Braun previously filed a similar complaint in the Delaware District Court does not 

change the calculation of the limitations period in this action. After filing her case in 

Delaware, she decided not to pursue it. Although she later sought reopening, her motion 

to reopen was denied in an order from which she did not timely appeal. Braun’s 

arguments that her District Court case is a continuation of her earlier case or that her 

“paperwork” from that case (much of which was attached as exhibits to her complaint) 

should have been forwarded to, or obtained by, the District Court are without merit. 
6

For these reasons, the District Court properly dismissed Braun’s complaint. See 

also Erie Telecomms., Inc. v. City of Erie, 853 F.2d 1084, 1089 n.10 (3d Cir. 1988) 

(holding that we may affirm on an alternative basis supported by the record). Also, the 

District Court did not abuse its discretion in denying leave to amend on the basis of 

futility. We will affirm the District Court’s judgment.