                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 12-2846
                                      ___________

                                      KWOK SZE,
                                              Appellant

                                            v.

PUI-LING PANG, a/k/a Sherry Pang; DETECTIVE CORADO, as individual and as New
 Castle Police Officer; DETECTIVE SERGEANT WILSON, as individual and as New
  Castle Police Officer; DETECTIVE NOELLE VARGAS, as individual and as New
                                Castle Police Officer
                      ____________________________________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                        (D.C. Civil Action No. 1:12-cv-00619)
                       District Judge: Honorable Yvette Kane
                     ____________________________________

                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   July 9, 2013
       Before: FUENTES, VANASKIE and VAN ANTWERPEN, Circuit Judges

                              (Opinion filed: July 9, 2013)
                                     ___________

                                       OPINION
                                      ___________

PER CURIAM

      Kwok Sze, proceeding pro se, appeals from the District Court’s sua sponte

dismissal of his complaint. For the following reasons, we will vacate the District Court’s

dismissal order and remand for further proceedings.
       In April 2012, Sze filed a 42 U.S.C. § 1983 complaint, alleging that Pang, a

private citizen, violated his Fourth Amendment rights by recording their telephone

conversations in late March 2009 without his consent. He also alleged a violation of the

Federal Wiretapping Act, 18 U.S.C. §§ 2510-2520. Sze’s complaint was not served;

instead, a Magistrate Judge recommended that his complaint be dismissed as time-

barred.1 Subsequently, Sze filed objections, attaching an amended complaint. Sze’s

amended complaint named Detectives Corado, Wilson, and Vargas of the New Castle,

New York Police Department as defendants, alleged that Pang was acting at the direction

of the police, and argued that the Magistrate Judge had failed to consider his Federal

Wiretapping Act claim. The District Court adopted the Magistrate Judge’s

recommendation and dismissed Sze’s complaint with prejudice. In doing so, the District

Court noted that Sze had filed documents after the Magistrate Judge had entered his

Report and Recommendation, but did not explicitly reference that one of these documents

was an amended complaint. This appeal followed.

       We have jurisdiction under 28 U.S.C. § 1291 and exercise plenary review over the

District Court’s sua sponte dismissal of Sze’s complaint. See Allah v. Seiverling, 229

F.3d 220, 223 (3d Cir. 2000). To survive dismissal, a plaintiff’s complaint must “contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its



1
  The Magistrate Judge also recommended dismissal because (1) Sze’s complaint violated
Fed. R. Civ. P. 8(a) and (2) Sze had failed to state a viable claim against Pang.
Alternatively, the Magistrate Judge recommended that Sze’s complaint be transferred to
the Western District of Pennsylvania.

                                                2
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007)).

         As an initial matter, we disagree with Sze that the District Court should have

applied New York’s three-year statute of limitations.2 Sze’s objections to the Magistrate

Judge’s Report and Recommendation explicitly stated that the alleged illegal recordings

occurred in Dunmore, Pennsylvania; accordingly, Sze’s Fourth Amendment claim is

governed by the two-year limitations period found in 42 Pa. Cons. Stat. § 5524(2). See

Knoll v. Springfield Twp. Sch. Dist., 763 F.2d 584, 545 (3d Cir. 1985). Sze claims that

the illegal recordings occurred in late March 2009. However, he did not file his

complaint until April 2012. This was too late.

         State law, unless inconsistent with federal law, governs the issue of whether a

limitations period should be tolled. See Dique v. N.J. State Police, 603 F.3d 181, 185 (3d

Cir. 2010). In Pennsylvania, the statute of limitations may be tolled by the discovery

rule, which applies when an injury or its cause was not known or reasonably knowable

“despite the exercise of due diligence.” Mest v. Cabot Corp., 449 F.3d 502, 510 (3d Cir.

2006) (quoting Pocono Int’l Raceway v. Pocono Produce, Inc., 468 A.2d 468, 471 (Pa.

1983)). In his amended complaint, Sze asserted that the limitations period should be

tolled until November 15, 2011, when he received a letter from the New Castle Police




2
    See Shomo v. City of N.Y., 579 F.3d 176, 181 (2d Cir. 2009).

                                               3
Department in New York informing him that none of the parties to the telephone

conversations had provided prior written consent for the recording.3

       We agree with the District Court that Sze’s claim that he did not know that he had

not provided written consent does not, by itself, provide a reason to toll the statute of

limitations. Surely, Sze knew whether he had previously consented to the recording of

his conversations. However, in his brief, Sze asserts that while at first he thought the

defendants had received consent to record the calls from someone, he did not learn until

November 15, 2011 that none of the parties had given consent. In light of the liberal

construction we must give to pro se filings, see Haines v. Kerner, 404 U.S. 519, 520

(1972), we cannot rule out the possibility that a reasonably diligent person could not have

learned about the alleged lack of consent until after enough time had lapsed to make his

complaint timely. Indeed, the only information the current record provides us is that

certain telephone calls between Sze and Pang were recorded during late March 2009. If

Sze had exercised due diligence but could not reasonably learn of the alleged lack of

consent until November 15, 2011, he would likely be entitled to have the limitations

period tolled until then. See Mest, 449 F.3d at 510. However, such a determination

necessarily entails fact-finding, which appropriately lies within the province of the

District Court.4


3
 Sze did not attach a copy of this letter to his amended complaint.
4
 We note that Sze was permitted to file his amended complaint without obtaining leave
after the Magistrate Judge filed his Report and Recommendation. A district court’s
screening responsibilities under 28 U.S.C. § 1915A(a) include “review[ing], before
docketing if feasible or, in any event, as soon as practicable after docketing, a complaint

                                              4
       We also agree that the District Court failed to consider Sze’s Federal Wiretapping

Act claim. 18 U.S.C. § 2520(a) provides that, with certain limitations, “any person

whose wire, oral or electronic communication is intercepted, disclosed, or intentionally

used in violation of this chapter may in a civil action recover from the person or entity . . .

which engaged in that violation such relief as may be appropriate.” Civil actions under

the Act are also subject to a two-year limitations period, which begins running “two years

after the date upon which the claimant first has a reasonable opportunity to discover the

violation.” 18 U.S.C. § 2520(e). Given Sze’s allegation that he did not learn about the

lack of consent until November 15, 2011, we cannot preclude the possibility that Sze has

raised a timely claim under the Act. Accordingly, the District Court erred by sua sponte

dismissing Sze’s complaint, as it is unclear from the face of his complaint as to whether

his action is barred by the applicable limitations periods. See Ray v. Kertes, 285 F.3d

287, 297 (3d Cir. 2002) (“As a general proposition, sua sponte dismissal is inappropriate

unless the basis is apparent from the face of the complaint.”).




in a civil action in which a prisoner seeks redress from a governmental entity or officer or
employee of a governmental entity.” If the complaint fails to state a claim upon which
relief may be granted, the court should dismiss the complaint. See 28 U.S.C. §§
1915(e)(2)(B)(ii), 1915A(b)(1). However, because a party can “amend its pleading once
as a matter of course” prior to the filing of a responsive pleading, Fed. R. Civ. P.
15(a)(1), “a district court’s discretion to dismiss a complaint without leave to amend is
severely restricted by Fed. R. Civ. P. 15(a),” Bryant v. Dupree, 252 F.3d 1161, 1163
(11th Cir. 2001) (quotation and alteration omitted). “Nothing in the language of the
[Prisoner Litigation Reform Act] repeals Rule 15(a).” Brown v. Johnson, 387 F.3d 1344,
1349 (11th Cir. 2004) (alteration in original).

                                              5
      For the foregoing reasons, we will vacate the District Court’s dismissal order and

remand the matter for further proceedings. Sze’s motion for a protective order is denied.5




5
 In his motion, Sze complains about occurrences at the Franklin Correctional Facility. If
Sze wishes to raise claims about these occurrences, he should file a complaint in the
appropriate district court.

                                            6
