GLD-390 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 13-2784

___________ LISA MARIE OSTUNI, Appellant

v. WA WA'S MART; PAULINE COUNTE RMAN; OFFICER PAUL DUFFY

___________________ _________________ On Appeal from the Un ited States District Court for the Middle District of Pennsylvania (D.C. Civil No. 3:12-cv-00714) District Judge: Honorable Richard P. Conaboy

___________________ _________________ Submitted for Possible D ismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or Summary Action Pursuant to Thi rd Circuit LAR 27.4 and I.O.P. 10.6 August 15, 2013 Before: FUENTES, FISHER and VANASKIE, Circuit Judges (Opinion filed: August 22, 2013)

_________ OPINION

_________ PER CURIAM Pro Se Appellant Lisa Marie Ostuni app eals an order of the United States District Court for the Middle District of Pennsylvania dismissing her complaint under 28 U.S.C. § 1915(e) and denying her motion for reconsiderati on. We have jurisdiction pursuant to 282 U.S.C. § 1291 and exercise plenary review over the District Court’s order. See Allah v. Seiverling , 229 F.3d 220, 223 (3d Cir. 2000). We review a District Court's denial of reconsideration for abuse of discreti on. Max's Seafood Cafe v. Quinteros , 176 F.3d 669, 673 (3d Cir. 1999). Because the appeal do es not present a substan tial question, we will summarily affirm the judgment of the District Court. See 3d Cir. L.A.R. 27.4; I.O.P.
10.6. Ostuni filed a pro se civil rights action pu rsuant to 42 U.S.C. § 1983 on April 17, 2012, arising from a September 4, 2009, in cident during which she was arrested at a WaWa Convenient Mart by Officer Paul Duffy of the Stroudsburg Police Department. Ostuni was convicted of aggravated assault and sentenced to a maximum term of imprisonment of 18 months at the Monroe County Correctional Facility. 1 The allegations of the complaint are difficu lt to discern, but a Magistrate Judge construed Ostuni’s complaint as raising a Fourth Amendmen t false arrest and excessive force claim regarding her September 4, 2009 arrest and recommended that Ostuni’s complaint be dismissed with prejudice. 2

1 At the time the District Court issued its opinion, Ostuni ha d fully served this sentence and she was incarcer ated at SCI-Cambridge Springs, serving an unrelated sentence of two to six years for her guilty plea following charges of homicide by vehicle while driving under the influence and r elated offenses stemming from a June 2009 incident. By order entered June 13, 2012, the District Court dismissed Ostuni’s complaint with prejud ice, except to the extent that her false arrest claim against

2 While Ostuni’s complaint fails to meet th e pleading requirements of Rule 8 of the Federal Rules of Civil Procedure, affording Ostuni with the liberal construction we must give to pro se pleadings, see Haines v. Kerner , 404 U.S. 519, 520 (1972), we agree with the District Court that Ost uni’s complaint can be constr ued to assert claims for false arrest and excessive force.3 one of the defendants could be raised if her conviction were ever overturned or invalidated. The District Court ordered the C lerk to close the case. On July 13, 2012, Ostuni filed a motion for reconsideration, wh ich the District Court de nied on July 23, 2012. On September 27, 2012 , the District Court denied O stuni’s motion for extension of time to appeal. We vacated that decision and remanded the case to the District Court to analyze whether the neglect in filing an untimely app eal was excusable under the standard set forth in Pioneer Inv. Serv. Co. v. Bruns wick Assoc. Ltd. P’ship , 507 U.S. 380 (1993). See Ostuni v. WaWa's Mart , No. 12-3871, 2013 WL 1122706 (3d Cir. Mar. 19, 2013). Thereafter, the District Court issu ed a Memorandum holding that there was excusable neglect for no t timely filing an appeal under Pioneer and, therefore, granted the motion for extension of time. We now consider the District C ourt’s dismissal of Ostuni’s § 1983 action and the denial of her motion for reconsideration. 3 Here, the District Court did not err in dismissing the complain t without providing Ostuni with an oppor tunity to amend her complaint, b ecause any such amendment would be futile. See Grayson v. Mayview State Hosp. , 293 F.3d 103, 108 (3d Cir. 2002). If the allegations, taken as true, show that relief is barred by the applicable statute of limitations, a complaint is s ubject to dismissal for failu re 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). Alth ough the running of the statute of limitations is ordinarily

3 An appeal from a denial of a motion for reconsideration also “brings up the underlying judgment for review,” Fe d. Kemper Ins. Co. v. Rauscher , 807 F.2d 345, 348 (3d Cir. 1986).4 an affirmative defense, where that defense is obvious from the face of the complaint and no development of the record is necessary, a court may d ismiss a time-barred complaint

sua sponte under 28 U.S.C. § 1915(e)(2)(B)(ii) fo r failure to state a claim. See, e.g., Fogle v. Pierson , 435 F.3d 1252, 1258 (10th Cir. 2006). In this case, Ostuni’s claims were subject to Pennsylvania’s two-year statute of limitations for personal injury actions. See Kost v. Kozakiewicz , 1 F.3d 176, 189-90 (3d Cir. 1993); Napier v. Thirty or More Un identified Fed. Agents, Employees or Officers , 855 F.2d 1080, 1087 n. 3 (3d Cir. 1988); see also 42 Pa. C.S. § 5524. Her cause of action accrued when she knew or should have known of the injury u pon which her action is based. See Sameric Corp. of Delaware v. City of Philadelphia , 142 F.3d 582, 599 (3d Cir. 1998). Claims for false arrest and ex cessive force typically accrue on the date of the arrest or the assault, because, at that point, the plaintiff has reason to know of the injury.
See Montgomery v. De Simone , 159 F.3d 120, 126 (3d Cir. 1998). In this case, Ostuni knew or should have known of her claims of false arrest and excessive force on the night of September 4, 2009. Because she filed her complaint more than two years later, in April 2012, both claims were time-barred and subject to dismissal, notwithstanding the favorable termination rule of Heck v. Humphrey , 512 U.S. 477 (1994). See Wallace v. Kato , 549 U.S. 384 (2007). 4

4 We need not decide wh ether the District Court co rrectly concluded that Ostuni would be entitled to equitable to lling from December 17, 2010, to February 28, 2011- the period from when she submitt ed a complaint to an inco rrect address to when it was returned to her by the Superior Court- because excluding this tw o and one-half month period does not render her action timely.5 For the foregoing reasons, we modify the judgment of the District Court to dismiss the false arrest claim with prejudice, and in all other respects, we affirm the judgment of the District Court. 5

5 We conclude that the District Court properly denied Ostuni’s motion for reconsideration because it did not meet th e requirements under Federal Rule of Civil Procedure 59(e). See Lazaridis v. Wehmer , 591 F.3d 666, 669 (3d Cir. 2010) (per curiam) (citation omitted).