2011 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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w . v i l l a no v a . e du/thir dc ir c uit_2011/18451 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________ No. 09

- 3613

____________ HAKIM BOND,

Appellant

v. VISIONQUEST; VISIONQUEST NATIONAL DIRECTOR; MAJOR SMIT H, UNIT DIRECTOR, COUNSELOR AND MEDICAL STAFF; MR. MCGLAUGHLIN, ALL OF VISIONQUEST; THE CLARION HOSPITAL; THE TREATMENT TEAM; DOCTOR PETER MEYER; THE CHILDRENS HOSPITAL OF PHILADELPHIA; THE CITY OF PHILADELPHIA; THE PHILADELPHIA DEPARTMENT OF HUMAN SERVI CES DIRECTOR; THE DIRECTOR OF THE YOUTH STUDY CENTER; THE PHYSICIAN AND MEDICAL STAFF, TO INCLUDE NURSES AND OTHER THERAPIST OR THE TREATMENT TEAM; THE DIRECTOR OF COMMUNITY BEHAVIORAL HEALTH; AMANDA LATSHAW; SABRINA BACKSTONE, OF COMMUNITY BEHAVIORAL HEALTH; THE DIRECTOR; DR. JEROME VANCE; MR. DAVE ASAY, THERAPIST; MR. DAVE GUYMAN, SUPERVISING THERAPIST; DR. THOMAS; THE BENCHMARK BEHAVIORAL HEALTHSYSTEMS

____________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLV ANIA

(D.C. Civil No. 08

- cv - 04527) District Judge: Honorable C. Darnell Jones, II

____________ Submitted Under Third Circuit LAR 34.1(a)

January 11, 2011

____________ Before: SCIRICA, BARRY and VANASKIE, Circuit Judges

(Opinion Filed: February 7, 2011)2 ____________ OPINION

____________

BARRY, Circuit Judge Hakim Bond appeals from an order of the District Court dismissing his complaint as time

- barred and vacating a prior order to appoint counsel. For the reasons stated below, we will affirm.
I. Ba ckground Because we write solely for the benefit of the parties, we will only briefly recite the facts. Bond brought claims under 42 U.S.C. § 1983, as well as various state

- law causes of action, alleging, among other things, that he was misdiagnosed, subj ected to racism, and in many other ways severely mistreated while he was a minor under state custody and supervision. Bond named as defendants a host of state agencies, private institutions, and individuals. To name just a few, the defendants included Vi sionQuest National, Ltd. (“VisionQuest”), which Bond described as a “national corporate [juvenile] delinquent facility [which] utilizes extreme boot camp measures, and [which] imposes Indian culture and practices on youth.” App. at 23 ¶ 5; Clarion Hospita l, where Bond was treated; and the City of Philadelphia. In March 2006, Bond, along with his father, Reginald Carter, filed a pro se complaint in the Western District of Pennsylvania, alleging essentially the same facts as3

alleged here. On October 2 3, 2006, Bond filed a motion to withdraw the complaint, noting that Pennsylvania‟s statute of limitations permitted him to file a civil action until September 14, 2008, two years after his eighteenth birthday, and that Carter hoped to “gather the proper le gal help” to pursue the case. Id. at 187. The complaint was dismissed without prejudice on January 16, 2007. On September 17, 2008, Bond commenced the present action by filing a motion to proceed in forma pauperis (“IFP”). The motion was dated Septemb er 12, 2008, and date

stamped received by the District Court on September 17, 2008. Bond listed his address as what appears to be a private residence in Philadelphia. Bond‟s proposed complaint was attached to the IFP motion, and was dated September 12, 2 008. The complaint also listed the same residential address in Philadelphia and stated, in the first line, that Bond “is a resident of Philadelphia, Pennsylvania.” App. at 22. Significantly, attached as an exhibit to the complaint was a letter from Cart er to Bond‟s former state

- appointed attorneys dated September 16, 2008, and marked in handwriting, “Hand delivered 9/17/08.” Id. at 36. On September 25, 2008, the Court granted Bond‟s IFP motion and ordered the complaint to be filed. On December 12, 20 08, Bond filed a motion for appointment of counsel, stating that “Plaintiff is currently incarcerated and finds it nearly impossible and quite difficult to work with his father . . . in pursuing this matter.” Id. at 70. Clarion Hospital opposed Bond‟s mo tion, arguing that the complaint was untimely because it was filed after the4

two

- year statute of limitations for such actions under 42 Pa. Cons. Stat. § 5524. Clarion Hospital also asked the Court to dismiss the case in its entirety due to the statute o f limitations barrier. Bond filed a reply to Clarion Hospital‟s motion, stating that “plaintiff believes that his being late in this filing by a couple of days is forgivable, and ask [sic] that the court makes an exception in this matter based on the nee d for fairness, justice, and the fact that he and his father sought to bring this matter before the court, not being ab[]le to obtain counsel . . . .” Id. at 100. On February 6, 2009, the District Court granted Bond‟s motion for appointment of
counsel b y referring the matter to the Prisoner Civil Rights Panel for the Eastern District of Pennsylvania, which would seek counsel for Bond. The Court also placed Bond‟s case on the “suspense” list. VisionQuest filed a motion to dismiss on February 9, 2009,
cl aiming that the action was barred by the statute of limitations, which ran on September 14, 2008, Bond‟s twentieth birthday. The City of Philadelphia filed a similar motion on March 18, 2009. On August 7, 2009, the District Court removed the case from sus pense, vacated its prior order granting Bond‟s motion for appointment of counsel, granted VisionQuest‟s and the City of Philadelphia‟s motions to dismiss, dismissed all remaining motions as moot, and dismissed Bond‟s claims against all defendants with prej udice. The Court stated that Bond‟s complaint, filed September 17, 2008, was time

- barred because the statute of limitations ran on September 14, 2008. Id. at 6. It stated that Bond “was not a5

prisoner at the time when he filed his Complaint, thus the „ prisoner mailbox rule‟ does not apply.” Id. The Court noted that sometime after it referred the case to the Prisoner Civil Rights Panel, the Panel “informed the Court that Plaintiff was no longer incarcerated.” Id. Accordingly, Bond‟s case was ineligib le for submission to the Panel for referral to an attorney. On December 31, 2009, we granted Bond‟s motion for appointment of appellate counsel, and directed appointed counsel to address: (1) whether the District Court adequately addressed the factors se t forth in Tabron v. Grace , 6 F.3d 147, 155

- 58 (3d Cir. 1993), in denying Bond‟s motion for appointment of counsel; (2) whether Bond was incarcerated when he filed his complaint; and (3) whether the Court erred in dismissing Bond‟s complaint without consid ering whether there was any basis for tolling. We also directed counsel to include documents, including relevant mailing envelopes, demonstrating when the Court received the complaint. Appellees have submitted as part of the record a copy of a mailing en velope addressed to the Clerk of Court with a return address for Bond, care of his father, listing the same residential Philadelphia address that appeared on Bond‟s other documents. The envelope contains no postmark or postage, which suggests that a third person, possibly Bond‟s father, hand

- delivered the IFP motion and complaint to the Court.

II. Discussion 16

We exercise de novo review over a district court‟s grant of a motion to dismiss. Phillips v. County of Allegheny , 515 F.3d 224, 230 (3d Cir. 20 08). We “must accept the truth of all factual allegations in the complaint and must draw all reasonable inferences in favor of the non

- movant.” Revell v. Port Auth. of N.Y. and N.J. , 598 F.3d 128, 134 (3d Cir. 2010). We review a district court‟s decisio n declining to appoint counsel for abuse of discretion. Montgomery v. Pinchak , 294 F.3d 492, 498 (3d Cir. 2002). Bond argues that that he was incarcerated when the IFP motion and complaint were filed and, thus, that he was entitled to the benefit of the prisoner mailbox rule and his September 17, 2008 filing was not time

- barred. Bond‟s § 1983 and supplemental
state

- law claims are governed by Pennsylvania‟s two

- year statute of limitations for personal injury claims. See Lake v. Arnold , 232 F.3d 36 0, 368 (3d Cir. 2000); 42 Pa. Cons. Stat. § 5524. Because Bond was a minor during the events described in his complaint, Pennsylvania‟s tolling statute permitted his complaint to be filed for two years after his eighteenth birthday, 42 Pa. Cons. Stat. § 5 533(b), in his case, until September 14, 2008. Because September 14, 2008 fell on a Sunday, Bond had until Monday,

1 The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, and 1367. We have jurisdiction pursuant to 28 U.S.C. § 1291.7

September 15, 2008 to file his complaint. See Fed. R. Civ. P. 6(a)(3). 2 The Supreme Court first articulated the prisoner mailbox rule in Houston v. Lack , 487 U.S. 266 (1988), where it found that a notice of appeal was timely filed at the time that it was delivered to the prison authorities for forwarding to the court clerk. Id. at 276. Other circuits, as well as district courts within the Third Circuit, have extended this rule
to pro se prisoner complaints. See , e.g. , Richard v. Ray , 290 F.3d 810, 813 (6th Cir. 2002); Smith v. Carroll , 602 F. Supp. 2d 521, 526 n.7 (D. Del. 2009). So, too, will we for purposes of this appeal. Bond argues that he was imprisoned when he filed his complaint. The District Court, however, was unaware of this when it dismissed the complaint. In response to our December 31, 2009 Order directing Bond‟s attorney to address whether Bond was
incarcerated at the time he filed his complaint, Bond filed a two

- page document which appears to show that he was released on bail from the Curran

- Fromhold Correctional Facility (“CFCF”) in Philadelphia on February 3, 2008, and re

- admitted on February 8, 2008. He also po ints to his personal information on the Court‟s civil docket sheet, which lists his address as the Philadelphia Industrial Correctional Center (“PICC”) and shows his prisoner number. Neither of these documents, however, establishes that Bond was

2 Certain appellees contend that Rule 6(a)(3) is not relevant to prisoners seeking to apply the prisoner mailbox rule, but they concede, for purposes of this appeal, that Bond had until September 15, 2008 to file his complaint.8

imprisone d at the time he filed his complaint. The two

- page document showing his intake at CFCF only establishes that he was imprisoned on February 8, 2008, not at the time he filed the complaint in September 2008. Further, the address listed on the docket sheet at the time of appeal only reflects his address at that time; it was not necessarily his address in September 2008. But even assuming that Bond was incarcerated in September 2008, he is not entitled to the prisoner mailbox rule because there was no way for the District Court to have known that Bond was imprisoned. The addresses listed on Bond‟s complaint, his IFP motion, and the mailing envelope containing the motion and complaint all listed what appears to be a residential address. Nothing in the complai nt or motion suggested that he was imprisoned at the time of filing. Most damaging to Bond‟s argument is the letter attached to his complaint that was dated September 16, 2008, and marked “hand delivered” on September 17, 2008. If these
dates are accura te, and there is no plausible reason to believe otherwise, then for Bond‟s complaint to have been mailed from prison, the complaint could not have been placed into the custody of prison officials for delivery to the District Court until, at the earliest, S eptember 17, 2008. It is unlikely that this is the case, since the complaint was filed on that date. The more likely scenario, which is supported by the fact that the envelope containing the complaint had no date stamp or postage, is that Bond gave the c omplaint to a third party, possibly his father, to hand deliver to the clerk‟s office. In that case, he is9

not entitled to the prisoner mailbox rule. See Kapral v. United States , 166 F.3d 565, 567

- 68 (3d Cir. 1999) (habeas motion filed by prisoner‟s atto rney not entitled to prisoner mailbox rule); Pearson v. Vaugh , 984 F. Supp. 315, 316

- 17 (E.D. Pa. 1997). Bond argues the applicability of a “presumption” that since his complaint is dated September 12, 2008, it was delivered to prison authorities prior t o September 15, 2008, and, thus, complies with the prison mailbox rule. He cites to United States v. Rinaldi , where we deemed a prisoner‟s notice of appeal as timely based on the date listed on the notice of appeal, rather than the docketed date. 447 F.3 d 192, 194 n.6 (3d Cir. 2006). Bond‟s argument, however, ignores the Supreme Court‟s observation in Houston that adopting a prisoner mailbox rule would not lead to disputes over the timing of a prisoner‟s filing because “prison authorities . . . have well

- developed procedures for recording the date and time at which they receive papers for mailing and . . . can readily dispute a prisoner‟s assertions that he delivered the paper on a different date.” 487 U.S. at 275. Here, Bond provides no evidence

— and do es not even directly state

— that he provided the complaint to prison authorities to mail to the District Court. 3

3 We reject Bond‟s additional argument that the District Court erred by dismissing his complaint as untimely without notice to him and without an opportunity to file a response. First, Bond did respond to Clarion Hospital‟s motion stating that Bond‟s claims were time

- barred, and never mentioned that he was imprisoned at the time he filed the complaint. Second, and more importantly, the provisions of 28 U.S.C. §§ 1915(e)(2)10

We also reject Bond‟s argument that the District Court erred in vacating its order appointing him counsel because it relied on an erroneous finding of fact as to his imprisonment status and because it failed to consider the factors set forth in Tabron

. Even assuming that the Court relied on incorrect information, Bond cannot satisfy the test for appointment of counsel. Tabron requires a dist rict court to first determine whether a case has some merit. Here, even though the Court did not mention Tabron or explicitly apply its factors, it implicitly found that because Bond‟s complaint was time

- barred, he could not overcome that important thresh old requirement. See , e.g. , Gallicchio v.
Bonner , No. 10

- 405 (SRC)(MAS), 2010 WL 2348705, at *1

- 2 (D.N.J. June 9, 2010) (denying appointment of pro bono counsel because petitioner‟s claims were time

- barred). Because the complaint was time

- barred, error i n relying on incorrect information about whether or not Bond was imprisoned was harmless. It was appropriate for the Court to vacate the order appointing counsel.
and 1915A instruct a court to dismiss an IFP case “at any time if the court determines that . . . the action or appeal . . . fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2); id. § 1915A. The Court fairly believe d that Bond‟s claim was time

barred, and, thus, did not err in dismissing the case without holding an evidentiary hearing on Bond‟s imprisonment status. A court cannot be expected to guess at the reasons to apply a tolling doctrine when no facts in suppor t of tolling have been provided by the claimant, even in pro se cases.11

III. Conclusion We will affirm the order of the District Court.