DLD-239 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 17-3111

___________

DANTE JACKSON,

Appellant

v.

CORRECTIONAL OFFICER ISRAEL RODRIGUEZ; CORRECTIONAL OFFICER 

THOMAS O'NEAL; CORRECTIONAL OFFICER HAKEEM WILSON; SERGEANT 

POTE; CORRECTIONAL OFFICER RUBEN SANTIAGO

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 2:15-cv-06495)

District Judge: Honorable C. Darnell Jones, II

____________________________________

Submitted for Possible Summary Action

Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

June 14, 2018

Before: JORDAN, SHWARTZ, and KRAUSE, Circuit Judges

(Opinion filed: June 21, 2018)

___________

OPINION*

_________________

PER CURIAM

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

Pro se appellant Dante Jackson appeals from the District Court’s order dismissing 

his complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). We will vacate the District 

Court’s order and remand the matter for further proceedings. See 3d Cir. L.A.R. 27.4; 

I.O.P. 10.6.

In 2015, Jackson, a pretrial detainee at the Philadelphia Industrial Correctional 

Center, filed a pro se civil rights complaint accompanied by an application to proceed in 

forma pauperis. Jackson alleged violations of his rights under the U.S. and Pennsylvania 

constitutions and related state-law claims for intentional and negligent infliction of 

emotional distress. Jackson was later appointed counsel, who filed an amended 

complaint in March 2017. Defendants then filed motions to dismiss the amended 

complaint. By order entered August 24, 2017, the District Court dismissed Jackson’s 

amended complaint sua sponte pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to 

state a claim, on the basis that the initial complaint was untimely and the action was thus 

barred by the statute of limitations. Order (Dkt No. 51) at 1 n.1. Jackson filed a timely 

notice of appeal.

Appellees have filed a motion seeking summary remand, arguing that the District 

Court failed to consider the effect of the prisoner mailbox rule on Jackson’s initial filing, 

and that, pursuant to that rule, Jackson’s initial complaint was filed within the statute of 

limitations. Jackson has filed a response in opposition to Appellees’ motion for summary 

remand, as well as his own motion for summary remand and a motion for appointment of 
3

counsel.1 In his motion for summary remand Jackson argues that the statute of 

limitations should have been tolled while he exhausted his administrative remedies. 

We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review of 

the District Court’s sua sponte dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to 

state a claim. See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). “[W]e accept 

all factual allegations as true [and] construe the complaint in the light most favorable to 

the plaintiff.” Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011) 

(quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). 

We conclude that the District Court erred in sua sponte dismissing Jackson’s 

complaint as time-barred. “The running of the statute of limitations is an affirmative 

defense.” Wisniewski v. Fisher, 857 F.3d 152, 157 (3d Cir. 2017). While a District 

Court possesses the authority to sua sponte dismiss a prisoner’s § 1983 action on the 

basis of the statute of limitations, it may not do so unless “it is clear from the face of the 

complaint that there are no meritorious tolling issues, or the court has provided the 

plaintiff notice and an opportunity to be heard.” Vasquez Arroyo v. Starks, 589 F.3d 

1091, 1097 (10th Cir. 2009) (citing Abbas v. Lt. Dixon, 480 F.3d 636, 640 (2d Cir. 

2007)). Upon review of the District Court record, we agree with the parties that sua 

sponte dismissal of the complaint as barred by the statute of limitations was not proper. 

 

1 Appellees have filed a response to the motion for appointment of counsel in which they 

ask that the Court refrain from considering the motion for appointment of counsel 

pending a decision on their motion for summary remand.
4

Pursuant to the prisoner mailbox rule, a prisoner’s complaint is considered filed on 

the day it was delivered to prison authorities for mailing. Houston v. Lack, 487 U.S. 266, 

276 (1988). The date listed on Jackson’s initial complaint is November 11, 2015, and he 

asserted in his response to defendants’ motion to dismiss that he sent his complaint to the 

district court on that date, “12 days before the time limit of his suit would run out.” 

Opposition (Dkt No. 8) at 1. As indicated by the Appellees, if Jackson delivered his 

complaint to prison officials on November 11, 2015, he then commenced this action 

within two years of the alleged violation pursuant to the prisoner mailbox rule, within the 

limitations period. 

Furthermore, the statute of limitations may have been tolled. Pennsylvania’s twoyear statute of limitations for personal-injury claims, applicable to § 1983 actions, is 

tolled while an inmate exhausts administrative remedies. Pearson v. Sec’y Dep’t of 

Corr., 775 F.3d 598, 603 (3d Cir. 2015); see also Wisniewsi, 857 F.3d at 158 (“[B]ecause 

exhaustion of prison administrative remedies is mandatory under the Prison Litigation 

Reform Act (“PLRA”), the statute of limitations applicable to § 1983 actions should be 

tolled while a prisoner pursues the mandated remedies.”). Jackson stated in his initial 

complaint, and asserts in this Court, that he filed prison grievances complaining of the 

alleged unconstitutional conduct. As there is a question whether the statute of limitations 

was tolled while Jackson exhausted administrative remedies, sua sponte dismissal of the 

complaint was unwarranted for this additional reason.

For the foregoing reasons, we will vacate the District Court’s order dismissing 

Jackson’s complaint with prejudice and will remand for further proceedings consistent 
5

with this opinion. See L.A.R 27.4; 3d Cir. I.O.P. 10.6. Jackson’s motion for 

appointment of counsel on appeal is denied.