2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-29-2009

Geoffrey Atwell v. Mark Schweiker

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-2329

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Recommended Citation

"Geoffrey Atwell v. Mark Schweiker" (2009). 2009 Decisions. Paper 582.

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ALD-315 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-2329

___________

GEOFFREY WILLARD ATWELL,

Appellant

v.

MARK S. SCHWEIKER; EDWARD G. RENDELL; JUDITH B. SELVEY; SARAH

HART, Pennsylvania Department of Corrections Chief Counsel; RANDY SEARS,

Pennsylvania Department of Corrections Deputy Chief Counsel; MICHAEL FARNAN,

Pennsylvania Department of Corretions Assistant Chief Counsel; THOMAS CORBETT,

JR.; JAMES O. THOMAS, JR.; GREGORY R. NEUHAUSER; R. DOUGLAS

SHERMAN; ROBERT A. GREEVY and ATTORNEY GENERAL D. MICHAEL

FISHER

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil No. 06-cv-01048)

District Judge: Honorable Sylvia H. Rambo

____________________________________

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

September 17, 2009

Before: SLOVITER, FUENTES and JORDAN, Circuit Judges

(Opinion filed: September 29, 2009 )

_________

OPINION

_________
2

PER CURIAM

Geoffrey Atwell appeals the District Court’s order granting appellees’ motion to

dismiss his complaint. For the reasons below, we will affirm.

The procedural history of this case and the details of Atwell’s claims are well

known to the parties and need not be discussed at length. Briefly, Atwell filed a

complaint pursuant to 42 U.S.C. § 1983 alleging that appellees failed to investigate his

claims that he was being held past the expiration of his maximum sentence. The District

Court concluded that Atwell’s claims were barred by Heck v. Humphrey, 512 U.S. 477,

487 (1994), and by the statute of limitations. Atwell filed a timely notice of appeal.

We have jurisdiction under 28 U.S.C. § 1291. We need not address whether the

complaint is barred by Heck because we agree with the District Court that it was

untimely. Claims brought pursuant to 42 U.S.C. § 1983 are subject to the state statute of

limitations for personal injury actions. Wilson v. Garcia, 471 U.S. 261, 266-67 (1985). 

In Pennsylvania, the statute of limitations for a personal injury action is two years. 42

Pa.C.S.A. § 5524. A cause of action accrues when the plaintiff knows or has reason to

know of the injury that constitutes the basis of the cause of action. Sameric Corp. of

Delaware, Inc. v. City of Philadelphia, 142 F.3d 582, 599 (3d Cir. 1998). 

Atwell argues that his sentence should have expired on October 19, 2002. In his

opposition to the appellees’ motion to dismiss, Atwell argued that his complaint was

timely because he had to exhaust the prison administrative grievance process. In a
3

grievance response dated January 9, 2003, a prison official explained the calculation of

the sentences and informed Atwell that the maximum expiration date of his sentences was

May 22, 2004. The Acting Chief Grievance Coordinator denied the final review of that

grievance on June 20, 2003. Thus, by June 2003, Atwell had finished exhausting his

administrative remedies and knew that prison officials had calculated the maximum

expiration date of his sentences to be May 22, 2004. His complaint, postmarked on May

20, 2006, was filed beyond the two-year statute of limitations.

Atwell argues that his complaint was timely filed within two years of his release

from prison on May 22, 2004. Because Atwell knew of his alleged injury at the time it

was inflicted, the continuing wrong theory does not apply. See Barnes v. American

Tobacco Co., 161 F.3d 127, 154 (3d Cir. 1998) (“We understand Fowkes[v. Pennsylvania

R.R. Co., 264 F.2d 397 (3d Cir. 1959)] to mean that continuing conduct of defendant will

not stop the ticking of the limitations clock begun when plaintiff obtained requisite

information. On discovering an injury and its cause, a claimant must choose to sue or

forego that remedy.”) (quoting Kichline v. Consolidated Rail Corp., 800 F. 2d 356, 360

(3d Cir. 1986)).

Summary action is appropriate if there is no substantial question presented in the

appeal. See Third Circuit LAR 27.4. For the above reasons, we will summarily affirm

the District Court’s order. See Third Circuit I.O.P. 10.6.