D L D

- 0 1 3 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 22

- 2475

___________ DAVID LASSEGUE ,

Appellant v. UNITED STATES OF AMERICA; USP ALLENWOOD, BOP and Staff Memb ers; USP CANAAN, BOP and Staff Members; USP POLLOCK, BOP and Staff Members; MR. FOX, Case Manager USP Pollock; MS. K. BIGART, Case Manager USP Canaan;

MR. SHANK, Mail Room Supervisor (in 2015); MR. COBURN, Case Manager USP Pollock; MR. BURKE, Case Manager USP Allenwood

__________________________ __________ On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil Action No. 4:21

- cv - 01466 ) District Judge : Honorable Matthew W. Brann

___________________________________ _ Submitted for Possible Dismissal Purs uant 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 O c t o b e r 2 0 , 2 0 2 2 Before: J O R D A N , S H W A R T Z , a n d S C I R I C A , Circuit Judg es

(Opinion filed November 2, 2022 )

______ ___ OPINION *

____ _____ PER CURIAM

* This disposition is not an opinion of the full C ourt and pursuant to I.O.P. 5.7 does not constitute binding precedent.2

David Lassegue , 1 a fede ral prisoner proceeding pro se and in forma pauperis , appeals from the District Court’s order granting the United States’ motion for summary judgment and dismissing the remaining claim under 28 U. S.C. § 1915(e)(2)(B) (i) and § 1915A(b)(1)

. W e will summaril y affirm.
I. In 2014, Lassegue was sentenced for federal offenses in the United States District Court for the District of Rhode Island. On October 7, 2014, the Bureau of Prisons (BOP) completed Lassegue’s initial secu rity classification, and he was transfer red to the United States Penitentiary (USP)

– Allenwood on Novembe r 13, 2014. He was subsequently transferred several times, including to USP

– Canaan in 2015 and to USP

– Pollock in 2016. In March 2017, Lassegue submitte d an administrative tort claim to the BO P’s Northeast Regional Office, alleging that he was erroneously housed at USP

– Allenwood

— and, ultimately, assaulted by other inmates

— because the BOP incorrectly classified him as a “high security inmate. ” The BOP den ied the claim as untimel y. Lassegue req uested reconsideration of his claim, and , in November 2017, the BOP denied the claim because there was insufficient evidence to support the allegations

. In February 2018, Lassegue filed a complaint in the United Stat es District Court for the District of Ne w Hampshire (“District of New Hampshire”) pursuant to the Federa l

1 Appellant’s surname is spelled “Lasseque” in some record documents and “Lassegue” in others. We will use the spelling “Lassegue,” as that spelling was used by the District Court and in Appel lant’s notic e of appeal.3

Tort Claims Act, 28 U.S.C. §§ 2671

– 80 (FTCA) , alleging that the BOP negligently misclassified him as a “maximum security” inmate and refused or neglec ted to correct the error when the BOP wa s made aware of it, causing him to suffer an assault at the hand s of other inmates. He also claimed that he was denied appropriate medical care after the assault. In response to the Government’s motion to dismiss, Lassegue acknowledged that his suit was filed in the wrong court and moved to withdraw the complaint for a change in venue. By order entered November 20, 2019, the District of New Hampshire granted Lassegue’s motion to voluntarily withdraw the complaint. See D.N.H. Civ. No. 1:18

- cv 00109

. In A ugust 2021, Lassegue filed a complaint in the United States Dist rict Court for the Middle District of Pennsylvania (“Middle District of Pennsylvania”) , raising the same claims he raised in the District of New Hampshi re . The United States filed a motion fo r summary judgment and to dismiss , arguing that Lassegue’s FTCA allegations were barred by the statute of limitations and, to the extent that he raised a Bivens 2 claim, he failed to allege facts demonstrating the oth er defendants’ personal involvement. Th e District Court granted summary judgment in fa vor of the United States on the FTCA claim, concluding that the claim was untimely , and it dismissed the Bivens claim against the other defendants as legally frivolous u nder 28 U.S.C. § 1915(e)(2)(B)(i) and 28

2 Bivens v. Unknown Named Agents of the Federal Bureau of Narcotics , 403 U.S. 388 (1971 ).4

U.S.C. § 1915A(b)(1), concluding that it, too, was time

- barred

. Lassegue now appeals.
II. We have jurisdiction pursuant to 28 U.S.C. § 1291 and review the District Court’s grant of a motion for summary judgment de nov o. See Dondero v. Lower Milford Twp. , 5 F.4th 355, 358 (3d Cir. 2021). 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)

. Additionally, we exercise pl enary review over a District Cour t’s sua sponte dismissal of a complaint under §§ 1915A and 1915(e). See Dooley v. Wetzel , 957 F.3d 366, 373 (3d Cir. 2020). W e may summarily affirm if the appeal fails to present a substantial question. See 3d Cir. L.A.R . 27.4; 3d Cir. I.O.P. 10.6.
III. The FTCA allows claims to be brought against the United States for torts committed by federal employees, but certain statutory requirements apply. First, a claimant must file an adminis trative claim within two years of the to rt 3 ; and second, the FTCA lawsui t must be initiated within six months of the federal agency’s denial of the
administrative claim. See 28 U.S.C. § 2401(b). Both conditions must be met for the FTCA action to be viabl e. See Sconiers v. United States , 896 F .3d 595, 598 (3d Cir.

3 “Under federal law, a cause of action accrues, and the statute of limitations begins to run, when t he plaintiff knew or should have known o f the injury upon which its action is based.” Kach v. Hose , 589 F.3d 626, 634 (3d Cir. 2009) (cleaned up).5

2018).
In support of its motion for summary judgment, the United States produced evidence showing tha t the BOP denied Lassegue’s administrative tort claim by letter dated September 6, 2017 , and it denied his request for r e considerati on by letter dated November 1, 201 7. Both letters notified Lassegue of the six

- month deadline to file a federal court action against the United States. However, Lassegue did not file this suit until August 2021 , almo st four years after the BOP denied his r equest for reconsideration

. A s the District Court determined, this claim is untimely absent tolling , as it was not initiated within six months of the BOP’s denial of his administrative claim.
E quitable tolling is av ailable in situations “ (1) where the d ef endant has actively misled the plaintiff respecting the plaintiff ’ s cause of action; (2) where the plaintiff in some extraordinary way has been prevented from asserting [his or] her rights; or (3) where the pla intiff has timely asserted [his or] her righ ts mistakenly in the wrong forum. ”
D.J.S.

- W. ex rel. Stewart v. United States , 962 F.3d 745, 750 (3d Cir. 2020) (cleaned up). The second and third tolling situations are at issue here. Considering the third tol ling s ituation first, Lassegue timely assert ed his rights mistakenly in the wrong forum

. In February 2018, a bout three months into the six

- month limitations period , Lassegue filed his complaint in the District of New Hampshir e . In November 2019, the Dist rict o f New Hampshire granted Lassegue ’s mot io n to voluntarily withdraw the complaint , agreeing that it had been filed in the wrong venue

. However, tolling the limitations6

period while Lassegue’s case was pending in the District of New Hampshir e does not render his claim timely , as he did not re fil e the claim in the correct venue until August
2021

— about 21 months later

. Considering the second tolling situation , Lassegue asserted that he encountered extraordinary circumstances that prevented his timely filing. S pecifically, he claimed that he was en ti tled to additional equitable tolling for the time he spent in state custody pursuant to the Interstate Agreement on Detainers (IAD ) from October 25, 2019 , until April 15, 2021 , and for the time he spent without acces s to a law library upon returning to
f ed eral custody, from April 15, 2021, until around August 2021. To be entitled to equitabl e tolling, Lassegue had to establish not onl y that some extraordinary circumstance prevented timely filing , but also that he had been pursuing his rights diligently

. Se e D.J.S.

- W. , 962 F.3d at 752. The District Court properly determined that he failed to establish either requirement

. First, Lasse gue failed to establish that he diligently pursue d his rights. He prepared and filed a complaint raising these same claims i n January 2018 and, when the complaint was voluntarily withdrawn in November 2019, he failed to refile it in the correct venue unti l August 2021. Even if he had inadequate access to legal resources from October 2019 until August 2021 , as he claims, it i s unclear why he could not have continued to pursue his claims in the proper venue , considering that he had already prepared a compla int raising the same claims and, at a7

minimum, could have filed the same complaint as a placeholder until he had access to ad ditional resources. 4 For the same reasons, Lass e gue did not establish that an extraordinary circumstance stood in his way and prevented timely filing. See D.J.S.

- W. , 962 F.3d at 751 (stating that the diligence prong and the extraordinary circumstances p ro ng “often go hand in hand,” and explaining, “ if no extraordinary circumstances stood in the litigant ’ s way, but she nevertheless failed to timely file, it is likely that she did not diligently investigate and pursue her claim ”). 5 Because there was no ge nu ine dispute that Lassegue

was n ot entitled to equitable tolling and his complaint was untimely , the District Court properly granted summary judgment in favor of the United States

. IV.

4 The District Court correctly noted that Lassegue was apparently able to access the mail when he was in sta te custody , as he filed a notice of chan ge of addres s with the District of New Hampshire on November 11, 2019, explaining that he had been transferred and requesting that his correspondence be forwarded to his new address in Rhode Island. Moreover, in Oct ober 2020, Lassegue wrote a letter reque sting copies of the documents he filed in the District of New Ha mpshire, and that court granted the request by order entered November 4, 2020. D espite obtaining copies of his earlier

- filed documents , Lassegue did no t file his complaint in the correct venu e until over nine months later.

5 To the extent that Lassegue co ntended that the District of New Hampshire did not inform him of his limitations period, this argument lacks merit. As the District Court explained, La ssegue timely filed his first FTCA claim in the Dist rict of New Hampshire, so there was no reason for th at court to perform any analysis of the applicable limitations period. And, as a general rule, a District Judge need not provide legal advice to pro se litigants. See Mala v. Crown Bay Marin a, Inc. , 704 F.3d 239, 244 (3d Cir. 2013)

. Moreover, Lassegue was advised of the applicable limitations period when the BOP denied his administrative tort claim.8

The District Court also construed L assegue’s complaint as raising a Biven s claim that BOP employees neglec ted his need for medical assistance after he was assaulted. As the District Court concluded, this claim was facially untimely. Although the statute of limitations is an affirmative def ense , s ee Fed. R. Civ. P. 8(c) , a cour t may dismiss claims sua sponte i f a time

- bar is obvious from the face of the complaint and no further development of the record is necessary. See Fogle v. Pierson , 435 F.3d 1252, 1258 (10th Cir. 2006); see also Jones v. Bock , 549 U.S. 199, 215 (2007) ; Va sq uez Arroyo v. Starks , 589 F.3d 1091, 1097 (10th Cir. 2009) . Claims under Bivens

are governed by a state’s statute of limitations for personal injury claims

. See Napier v. Thirty or More Unidentified Fed. Agents, Em ps., or Officers , 855 F.2d 1080, 1087

– 8 8 n.3 (3d Cir. 1988). Pennsylvania’s relevant limitations period is two years. See 42 Pa. Cons. Stat. § 5524

. Lassegue’s clai m of inadequate medical care accrued shortly after he was assaulted in June 2015 , when th e BOP allegedly failed to provide adeq u a te treatment for his injuries

. See Kach , 589 F.3d at 634 (explaining that a claim generally accrues “at the time of the last event necessary to complete the tort, usually at the time the plaintiff suffers an injury” ) ; Wallace v. Kato , 549 U.S. 384, 391 ( 2 007) (explaining that a claim

accrues when the wrongful act or omission results in damages , even if the full extent of the injury is not then known or predictable). Lassegue claimed that he was assaulted and left wi th inadequate medical care in 2015 , bu t he did not file his complaint until August9

2021, several years after the two

- year statute of limitations expired

. 6 And it is clear that there is no basis for equitable tolling. Lassegue’s Bivens claim was plainl y time

- barred,
and the District Court pr o perly dismissed it.
V. Because no substantial question is presented by this appeal, we will summarily affirm the District Court ’ s judgment

. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6

.

6 While it is not clear when, exactly, Lassegue attem pted to secure additional care, there is no question that he was aware of the issue by 2017, when he filed his administrative tort claim and complained about his injuries. Accordingly, even if the claim accrued as late as 2017, it is time

- barred.