                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 17-1651
                                       ___________

                                STEVEN C. BUTTOLPH,
                                                Appellant

                                             v.

                            PRIMECARE MEDICAL INC.;
                             P.A.C. TANYA SCHISLER;
                              D.O. CARL A. HOFFMAN
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                           (M.D. Pa. Civ. No. 1:16-cv-00325)
                      District Judge: Honorable John E. Jones III
                      ____________________________________

                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                               December 27, 2017
        Before: GREENAWAY, Jr., GREENBERG, and ROTH, Circuit Judges

                           (Opinion filed: September 19, 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.
       Steven Buttolph is a Pennsylvania inmate formerly confined at Perry County

Prison. He sued Dr. Carl Hoffman, Tanya Schisler, PA, and their employer, PrimeCare

Medical, Inc.—a private vendor of medical services to inmates—primarily claiming that

Schisler failed to properly treat Buttolph’s hemorrhoids after diagnosing the condition in

2009. After four years of allegedly “nonstop bleeding” and worsening, unabated pain,

Buttolph requested surgical intervention. In an email to Buttolph’s criminal defense

attorney, PrimeCare denied the request on the basis that surgery “is an elective procedure

that can wait until [Buttolph’s] discharge” from prison.

       Schisler ceased treating Buttolph in mid-2013. Her replacement, “Paul Navarro,

CRNP,” eventually connected Buttolph with a specialist. In early January 2014, the

specialist advised Buttolph that “the only remedy” for his medical issue was surgery.

Buttolph underwent a hemorrhoidectomy later that month. His pre- and post-operative

diagnosis was “significant external hemorrhoidal disease.” A second surgery was

recommended to clear up hemorrhoids too risky to address during the first surgery.

       The District Court granted the defendants’ (“Appellees”) motion to dismiss under

Fed. R. Civ. P. 12(b)(6), deeming determinative Pennsylvania’s two-year statute of

limitations for tort claims (42 Pa. C.S.A. § 5524), which is applicable to civil rights

claims under 42 U.S.C. § 1983. The District Court reasoned that Buttolph’s claims

“accrued, at the very latest, on January 6, 2014”—when the specialist communicated to

Buttolph about the need for surgery—and suit was not filed until more than two years

later, on February 16, 2016. According to the District Court, Buttolph’s civil rights
                                              2
claims under § 1983 were thus time-barred. On that basis, the District Court determined

that “leave to amend would be futile . . ..” Finally, the District Court declined to exercise

supplemental jurisdiction over Buttolph’s state law tort claims. This appeal followed.1

       We will vacate the District Court’s judgment and remand for further proceedings.

A limitations defense raised in a Rule 12(b)(6) motion may be successful “only if the

time alleged in the statement of a claim shows that the cause of action has not been

brought within the statute of limitations.” Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir.

2014). Additionally, it is not incumbent upon the plaintiff to anticipate the defense and

plead all facts necessary to beat it. Stephens v. Clash, 796 F.3d 281, 288 (3d Cir. 2015).

       Here, Buttolph’s pleading on its face was sufficient to withstand dismissal on

statute-of-limitations grounds at the Rule 12(b)(6) stage.2 Buttolph alleged that, before

bringing his claims to federal court, he spent time attempting to exhaust available

institutional remedies.3 That allegation is dispositive of this appeal, and the narrow issue


1
 We have jurisdiction under 28 U.S.C. § 1291. Our standard of review is plenary. Free
Speech Coal., Inc. v. Att’y Gen. of U.S., 677 F.3d 519, 529-30 (3d Cir. 2012). For
purposes of this appeal, we accept as true Buttolph’s well-pleaded factual allegations.
Baldwin v. Univ. of Pittsburgh Med. Ctr., 636 F.3d 69, 73-74 (3d Cir. 2011).
2
  In so deciding, we need not determine the applicable claim-accrual date as a matter of
law. But we note that Appellees, echoing the District Court, contend that, “[a]t the very
latest, January 6, 2014, is the date upon which Buttolph was unequivocally aware of the
extent of his hemorrhoid condition . . ..”
3
  Specifically, Buttolph alleged that he “filed a request for an official Perry County
Prison Grievance Form on 1/27/14, and 2/23/14, but never received any response,”
and then “filed a handwritten grievance [on April 20, 2014] and had it witnessed
to the fact of placing it in the request box on ‘B Block’, Perry County Prison.”
                                               3
it presents, for in Pearson v. Secretary Department of Corrections, 775 F.3d 598 (3d Cir.

2015), we held that Pennsylvania’s statute of limitations is tolled “while a prisoner

exhausts administrative remedies” as required by the Prison Litigation Reform Act

(“PLRA”), 42 U.S.C. § 1997e(a). Id. at 603. The District Court did not consider Pearson

or Buttolph’s allegation regarding exhaustion. It thus erred in dismissing the complaint as

facially time-barred. Cf. Wisniewski v. Fisher, 857 F.3d 152, 158 (3d Cir. 2017)

(concluding, where complaint mentioned inmate’s filing of grievances related to his

claim, “that the District Court erred in dismissing these claims as barred by the statute of

limitations without considering whether [the inmate] properly exhausted administrative

remedies and whether and to what extent the limitations period should be tolled.”).4

       Appellees argue that we may nevertheless affirm on alternative grounds, namely

that Buttolph failed to adequately state a constitutional claim for deliberate indifference


Buttolph alleged further that “[n]o reply was ever given” to the handwritten
grievance, a copy of which he attached to the complaint.
4
  Appellees contend that Buttolph’s handwritten grievance did not have the capacity to
toll because it included a request for damages and, “[w]hile providing medical care may
be a potential administrative remedy, paying a prisoner money as a result of allegedly
failing to provide medical care is not.” Appellees offer no authority to support that
argument, and there is nothing in the record from which to discern the scope of remedies
available to grievance-filing inmates at Perry County Prison. Cf. Booth v. Churner, 532
U.S. 731, 734 & n.1 (2001) (noting that Pennsylvania’s grievance system was modified
to permit recovery of money damages). If monetary damages were available to Buttolph
through the grievance process at Perry County Prison, he would have had to request such
relief in order to avoid defaulting on his damages claims in federal court. See Spruill v.
Gillis, 372 F.3d 218, 233-34 (3d Cir. 2004). But even if damages were not available,
Buttolph still would need to exhaust institutional remedies pre-suit; futility is no
exception to the PLRA’s exhaustion requirement. See Nyhuis v. Reno, 204 F.3d 65, 67
(3d Cir. 2000).
                                              4
to a serious medical need because he “was evaluated continually for his alleged medical

condition by Ms. Schisler and Mr. Navarro,” “received medication[,] and also underwent

medical procedures to address his condition.” Appellees advanced that line of argument

in support of their Rule 12(b)(6) motion, but the District Court had no occasion to address

it given its timeliness ruling.

       We do not accept Appellees’ alternative basis for affirmance. Even assuming,

arguendo, that the allegations in Buttolph’s complaint suggest no more than mere

negligence or medical malpractice—a derogation of duty insufficient to state a

constitutional claim, see Estelle v. Gamble, 429 U.S. 97, 106 & n.14 (1976)—or that they

are otherwise deficient, we cannot say that amendment of the complaint would be a futile

act. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d

Cir. 2007) (district courts are to offer amendment in pro se civil rights cases unless doing

so would be “inequitable or futile.”); cf. Durmer v. O’Carroll, 991 F.2d 64, 67 (3d Cir.

1993) (rejecting district court’s conclusion that doctor’s “conduct in sending [the

plaintiff] to several different specialists and providing of some treatment precludes a

finding of deliberate indifference.”); McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir.

1999) (“Even where medical care is ultimately provided, a prison official may

nonetheless act with deliberate indifference by delaying the treatment of serious medical

needs, even for a period of hours, though the reason for the delay and the nature of the

medical need is relevant in determining what type of delay is constitutionally

intolerable.”).
                                             5
       The District Court did not provide Buttolph an opportunity to amend his complaint

to address the substantive pleading deficiencies asserted by Appellees’ in their motion to

dismiss.5 The District Court believed that amendment of Buttolph’s complaint would

have been futile, but that belief was based solely on a timeliness analysis that we now

conclude was flawed in the context of ruling on a motion to dismiss under Rule 12(b)(6).

On remand, the District Court may wish to begin the renewed proceeding by allowing

Buttolph an opportunity to file an amended complaint.

       We make clear here that we have not resolved the merits of any defenses

Appellees may wish to raise in response to Buttolph’s anticipated amended complaint.

Indeed, we do not even foreclose the possibility of a successful statute-of-limitations

defense, albeit one made in a summary judgment motion supported by extra-pleading

evidence about the time that Buttolph consumed in his attempts to exhaust his

institutional remedies.




5
  Within 19 days of Appellees’ filing of their motion to dismiss in the District Court,
Buttolph submitted a proposed amended complaint with a motion for leave to amend. The
motion to amend was deemed withdrawn for failure to comply with the District Court’s
local procedural rules requiring the submission of a brief. Yet Buttolph need not have
filed a motion for leave to amend (or a brief) at all: he was permitted to amend “as a
matter of course” within 21 days of service of Appellees’ motion to dismiss. Fed. R. Civ.
P. 15(a)(1)(B). Thus, instead of nullifying his motion to amend, the District Court should
have construed Buttolph’s proposed amended complaint as a timely, automatic
amendment under Rule 15(a)(1).
                                              6
