2013 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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### CLD
- 199 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 12

- 4543

___________ PEDRO JUAN TAVARES ,

Appellant

v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA; SECRETARY OF THE UNITED STATES D EPARTMENT OF HOMELAND SECURITY; BRIAN ELWOOD, Monmouth County Jail Warden; THEODORE J. HUTTER, Passaic County Jail Warden

____________________________________ On Appeal from the United States District Court for the District of New Jersey (D.C. Civil N o. 2:10

- cv - 01328 ) District Judge: Honorable Kevin McNulty

____________________________________ 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 April 18, 2013 Before: RENDELL, JORDAN and VAN ANTWERPEN, Circuit Judges



### (Opinion filed : May 2, 2013 )

_________ OPINION

_________ PER CURIAM In 2010, appellant Pedro Juan Tavares, a New York prisoner, filed a pro se civil2



### rights lawsuit alleging constitutional violations i n connection with the many years he spent in various New Jersey and Pennsylvania immigration detention facilities . In Tavares’s amended complaint, he acknowledged that the complained

- of period ended in
2006. See, e.g. , Am. Compl. ¶¶ 6, 21. Pursuant to i ts screening responsibilities under the Prison Litigation Reform Act (“PLRA”), the District Court granted Tavares’s in forma pauperis (IFP) application and evaluated the complaint pursuant to 28 U.S.C. § 1915(e)(2). T he District Court decided it was time barred and dismissed it with prejudice , but the Court also granted Tavares leave to reopen if he could demonstrate (through the filing of a second amended complaint) that his claims were timely. Tavares’s motion to reopen was denied, after which he sought review from this Court. We have jurisdiction pursuant to 28 U.S.C. § 1291. 1 

### Our review of the dismissal order is plenary, see Allah v. Seiverling , 229 F.3d 220, 223 (3d Cir. 2000) , and our review of the denial of a request to reopen is for abuse of disc retion, cf. Silberman v. Bogle , 683 F.2d 62, 66 (3d Cir. 1982)

. “ Having granted [Tavares] leave to proceed [IFP]

1 

### Because the District Court’s September 2012 order allowed Tavares to submit a second amended complaint with a motion to reopen, which he did, the Court’s November 30, 2012 order is the “f

inal” order for the purposes of a timely appeal. In order to forestall future confusion, we note that this lawsuit was originally docketed by the District Court under the case number “10

- 1328,” which was used through August 2012. After September 2012, do cuments issued by the Court incremented the year by one, reflecting a “11

- 1328” case number; as a consequence, the two well

- reasoned District Court opinions are cataloged on legal databases using the latter case number. To be clear: the “two” cases are in fact one and the same. Because we believe the latter number to be a clerical error

— PACER reveals D.N.J. Civ. No. 11

- 1328 to be an entirely different case

— we use the 2010 reference in our caption.3



### on appeal, we must now determine whether his appeal should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) ”

— an appropriate path if the appe al has “no arguable basis in law or fact.” Azubuko v. Royal , 443 F.3d 302, 303 (3d Cir. 2006) (per curiam). We agree with the District Court that Tavares’s complaint was facially untimely, and hence was properly dismissed. See Fogle v. Pierson , 435 F. 3d 1252, 1258 (10th Cir. 2006) ; see also Ray v. Kertes , 285 F.3d 287, 297 (3d Cir. 2002)

. Even if we were to take the most charitable view of the accrual of his claims, none of the conduct alleged to be unlawful or unconstitutional in the amended complain t occurred after 2006

. As the District Court explained, the statute of limitations for civil

- rights suits is borrowed from the host state ’ s personal

- injury limitations period. Here, the period is two years. See,
e.g. , Dique v. N.J. State Police , 603 F.3 d 181 , 185 (3d Cir. 2010) ; see also Tavares v. Att’y Gen. , 211 F. App ’ x 127, 128 (3d Cir. 2007) (nonprecedential per curiam) (explaining the limitations period to Tavares in a prior appeal) . Tavares was given an opportunity to show that he was eligible fo r tolling of the limitations period or that his claims were otherwise timely , but he failed to make any such show ing. Accordingly, the District Court did not err by dismissing his complaint and in denying reopening. Thus, for the foregoing reasons, thi s appeal will be dismissed

. See 28 U.S.C. § 1915(e)(2) (B) (i)

.