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ALD-142 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-1101

___________

MARILYN KENT, Appellant

v.

MICHAEL HERIDIA

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 11-cv-07791)

District Judge: Honorable Juan R. Sanchez

____________________________________

Submitted for Possible Summary Action

Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6

March 29, 2012

Before: SLOVITER, FISHER and WEIS, Circuit

(Opinion filed: April 13, 2012)

Judges

___________

OPINION

___________

PER CURIAM.

Marilyn Kent appeals pro se and in forma pauperis from the United States District 

Court for the Eastern District of Pennsylvania’s order dismissing her complaint. Because 
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this appeal does not present a substantial question, we will summarily affirm the District 

Court’s order. See

I.

3d Cir. LAR 27.4; 3d Cir. I.O.P. 10.6.

In December 2011, Kent filed suit against Michael Heridia, from whom she 

apparently leased a barn in Bucks County, Pennsylvania, to house her horses. Her 

complaint asserted that Heridia had violated several criminal statutes when, in 2002, a 

loud piece of machinery that he was using scared one of her horses, causing it to injure 

itself and leaving it unable to race. Kent stated although she reported the incident to the 

Dublin, Pennsylvania police, they did nothing “to uphold the crimes code” due to their 

corruption. She also seemed to assert that Heridia discriminated against and harassed 

her, and would not allow a veterinarian to check on the horse. Kent’s claim for relief 

stated that she sought $5 million for “crime, corruption, loss and inability to proceed” 

because “this horse was a winner.” 

The District Court granted Kent’s motion to proceed in forma pauperis and at the 

same time dismissed the matter under 28 U.S.C. § 1915(e). The District Court first 

explained that, Kent, as a private citizen, did not have the right to bring a criminal case 

against Heridia. Additionally, she could not bring a breach of contract action under the 

District Court’s diversity jurisdiction because both she and Heridia are Pennsylvania 

residents. Finally, the District Court stated that the events giving rise to the complaint 

occurred in 2002, and thus, “[r]egardless of what type of action plaintiff is attempting to 

bring . . . it is now time-barred and must be dismissed for that reason.” 
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Kent now appeals.

II.

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

Court’s sua sponte dismissal of a complaint under 28 U.S.C. § 1915(e)(2) is plenary. 

Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). If a complaint is vulnerable to 

dismissal, a district court generally must first permit the plaintiff to file a curative 

amendment. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 

252 (3d Cir. 2007) (observing that in civil rights cases, “leave to amend must be granted 

sua sponte before dismissing” the complaint). However, dismissal without leave to 

amend is justified on grounds of bad faith, undue delay, prejudice, or futility. Alston v. 

Parker

Here, the District Court did not err in dismissing the complaint without providing 

Kent with an opportunity to amend her complaint, because any such amendment would 

be futile. 

, 363 F.3d 229, 235-36 (3d Cir. 2004).

See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). As 

the District Court determined, it was apparent from the face of the complaint that the 

allegations, to the extent that they even constituted actionable claims, were time-barred. 

Although the statute of limitations is an affirmative defense, a district court may sua 

sponte dismiss a complaint under § 1915(e) where the defense is obvious from the 

complaint and no further development of the record is necessary. See, e.g., Fogle v. 

Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006). 
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In this case, the events that gave rise to the complaint occurred in 2002. Kent did 

not, however, file her federal cause of action until 2011. To the extent that she sought to 

raise a breach of contract or tort claim due to the injuries to her horse, those claims are 

subject to statutes of limitations of two and four years, respectively. See 42 Pa. Cons. 

Stat. Ann. § 5525 (breach of contract claims); 42 Pa. Cons. Stat. Ann. § 5524(7) (tort 

claims). In addition, insofar as Kent sought to raise a civil rights claim against the Dublin 

police department, such a claim is subject to Pennsylvania’s two-year statute of 

limitations for personal injury claims. See Lake v. Arnold

Finally, the District Court correctly concluded that Kent cannot bring any type of 

criminal claim against Heridia, as private persons do not have a “judicially cognizable 

interest in the prosecution . . . of another.” 

, 232 F.3d 360, 368 (3d Cir. 

2000); 42 Pa. Cons. Stat. Ann. § 5524(7). Accordingly, it is apparent from the face of the 

complaint that the statutes of limitations expired well before Kent filed suit in federal 

court. 

See Linda R.S. v. Richard D.

For these reasons, we conclude that this appeal presents “no substantial question,” 

and will therefore summarily affirm the District Court’s judgment. 

, 410 U.S. 614, 

619 (1973). 

See 3d Cir. L.A.R. 

27.4; I.O.P. 10.6.