                                                          PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                           _______________

                                No. 13-1412
                             ________________

                            ANTONIO PEARSON
                                          Appellant

                                      v.

SECRETARY DEPARTMENT OF CORRECTIONS; SUPERINTENDENT GERALD
ROZUM; DEPT. SUPT.SYLVIA GIBSON; DEPT. SUPT. STEVEN GATES; MAJOR
   DANIEL GEHLMANN; D-UNIT MANAGER MANDY-JO BISER; D-UNIT
  MANAGER MR. PUTMAN; UNIT MANAGER HUNTER; E-UNIT MANAGER
EDWARD MULLIGAN;ALLEN JOSEPH, INMATE PROGRAM MANAGER; CAPT.
 THOMAS PAPUGA;SECURITY CAPTAIN LEO GLASS; CFSM-II PAUL FISHER;
CFSM-I DONALD LEPLEY; CFSS JOE REAMS; CFSI DON KOT; CAPT. GRIFFIN;
CAPT. PESERVA, (6-2 Shift); LT. REGESTER; SGT. CLIPPINGER; SGT. FRANK
KARL; SGT. MOORE, Warden; SGT. RITENOUR; CO I TROY; CO I PRITTS; CO
I MCKENZIE; CO I KRUMEL; CO I ACKERMAN; CO I LONG; CO I KIMMEL;
   CO I FOUST; CO I GAYDIS; SHARON M. BURKS; CINDY G. WATSON;
    KRISTEN P. REISINGER; DORINA VARNER; MICHAEL P. WOLANIN;
           EDWARD J. CWIK, CORRECTIONS EMPLOYMENT
                       PERSONEL; C.O. I. SINGER

                                ____________

                On Appeal from the United States District Court
                   for the Western District of Pennsylvania
                           (D.C. No. 3-09-cv-00054)

                  District Judge: Honorable Kim R. Gibson
                               _____________
                         Argued: November 20, 2014
      Before: MCKEE, Chief Judge, RENDELL, SLOVITER, Circuit Judges.

                       (Opinion filed: January 7, 2015)
Jessica C. Collins, Esq.        [ARGUED]
Kellogg, Huber, Hansen, Todd, Evans & Figel
1615 M Street, N.W.
Suite 400
Washington, D.C. 20036

Attorney for Appellant

Kemal A. Mericili, Esq.          [ARGUED]
Office of Attorney General of Pennsylvania
6th Floor
564 Forbes Avenue
Manor Complex
Pittsburgh, PA 15219

Attorneys for Appellees


                                      __________

                              OPINION OF THE COURT
                                    __________


             SLOVITER, Circuit Judge.

                    This appeal requires us to decide whether
             Pennsylvania’s statute of limitations is tolled while a prisoner
             exhausts administrative remedies prior to filing a civil rights
             lawsuit as required by 42 U.S.C. § 1997e(a) of the Prison
             Litigation Reform Act (“PLRA”), or in the alternative,
             whether federal equitable tolling principles are applicable.
             Additionally, we must determine if the District Court erred
             when it dismissed, for failure to state a claim, the portion of
             Antonio Pearson’s 42 U.S.C. § 1983 claim that it deemed
             timely.1

                                            I.


             1
              We thank pro bono counsel, Kellogg, Huber, Hansen, Todd,
             Evans & Figel, PLLC, for their able representation of
             Pearson.
                                            2
       Pearson is serving a life-term in the Pennsylvania
prison system. According to Pearson, “Department of
Corrections employees engaged in a two-year campaign of
harassment against him in retaliation for the filing of a civil
lawsuit and at least seven grievances.” Appellant’s Br. at 3–
4. Pearson’s allegations are discussed below.

        Beginning in 2006, Pearson filed a civil lawsuit against
a number of prison officials in the Somerset County Court of
Common Pleas. Thereafter, Pearson filed his first grievance
alleging that corrections officers had performed a cell search
to confiscate and read his legal materials on November 23,
2006. In a grievance addressing a January 9, 2007 incident,
Pearson claimed that a corrections officer had refused to
provide him with grievance paperwork unless Pearson
informed the corrections officer what his grievance was
about. Pearson filed another grievance that alleged that
Corrections Food Service Instructor Don Kot punched him in
the arm several times while he was working in the Dietary
Department on February 2, 2007. Next, Pearson filed a
grievance after a corrections officer told him on February 13,
2007 that he was not permitted to cite to the Department of
Corrections’ Code of Ethics in his grievances. Additionally,
Pearson filed a grievance addressing a February 26, 2007
incident, in which he claimed that he was terminated from his
dietary position by Corrections Food Service Managers Paul
Fisher and Joe Reams and E-Unit Manager Ed Mulligan for
filing his civil lawsuit and for filing the grievance about Kot’s
alleged assault.

       Pearson also claims that he was subjected to a series of
cell searches and relocations in retaliation for filing his civil
lawsuit and grievances. Pearson states that on September 24,
2007 he was denied a meal by corrections officers because he
“was running his mouth,” and on that date he filed a
grievance claiming that he “was still being black-balled from
getting a job.” App. at 68. Pearson also details an argument
with Sergeant Clippinger that occurred on February 29, 2008
wherein he claims that Clippinger, without provocation,
yelled at him in an aggressive manner in front of several other
inmates stating that Clippinger was not afraid of Pearson’s
grievances.


                               3
       Pearson was later assigned to a “blockworker” position
on August 17, 2008. Pearson alleges that on October 19,
2008 Sergeant Frank Karl learned of his appointment and
took steps to remove Pearson from the position; Pearson
claims that he attempted to file a grievance but corrections
officers removed it from his mailbox. Pearson was removed
from his job the next day on October 20, 2008 by Karl.
According to Pearson’s amended complaint, Unit Manager
Hunter told him that he was terminated from his position
because of the grievances that he had filed.

                              II.

        Pearson filed a complaint alleging violations of 42
U.S.C. § 1983 on February 28, 2009,2 and was later granted
leave to amend his complaint.3 The defendants filed a motion
to dismiss, and the Magistrate Judge recommended granting
the motion on the basis that all of Pearson’s “non-trivial”
allegations that occurred prior to March 1, 2007 were time-
barred under Pennsylvania’s two year statute of limitations.
App. at 4–6. Additionally, the Magistrate Judge concluded
that Pearson’s claim based on his termination from his
position as a blockworker was timely, but that he failed to
state a claim because there were “no facts that allow a
plausible inference that [the termination] was caused by any
protected activity of plaintiff’s.” App. at 7. The Magistrate
Judge reasoned that “if a retaliatory animus can be legally
derived from temporal proximity of an inmate’s grievances or
lawsuits to a decisionmaker’s decision, then frivolous inmate
litigation [would] become[] the legal equivalent of a breeder

2
  Pearson’s complaint was signed on February 28, 2009 and
received by the court on March 3, 2009. “The federal
‘prisoner mailbox rule’ provides that a document is deemed
filed on the date it is given to prison officials for mailing.”
Pabon v. S.C.I. Mahanoy, 654 F.3d 385, 391 n.8 (3d Cir.
2011).
3
  Pearson’s amended complaint named thirty-nine defendants.
However, the Magistrate Judge determined that only the
allegations against Kot, Fisher, Reams, Mulligan, and Karl
(collectively, “defendants”) were specific enough to warrant
service and dismissed the balance of Pearson’s remaining
claims.
                               4
reactor.” App. at 8. The District Court adopted the Magistrate
Judge’s Report and Recommendation.

        Pearson filed objections to the Magistrate Judge’s
Report and Recommendation claiming that the Magistrate
Judge failed to toll the statute of limitations while Pearson
exhausted his administrative remedies pursuant to the PLRA
and erred by not accepting the allegations of his complaint as
true with respect to his retaliatory discharge claim.4 In a
second Report and Recommendation in response, the
Magistrate Judge relied on Congress’ intent to curb frivolous
inmate litigation and concluded that because “[t]he choices of
what remedies to afford, where inmates can file in state court,
and the exhaustion requirements in state court are up to the
state and the litigant” the PLRA is not a statutory
prohibition.5 App. at 17. Additionally, the Magistrate Judge
concluded that application of equitable tolling principles was
inappropriate because Pearson made no showing that prison
officials had prevented or obstructed Pearson from
completing the grievance process to run out the statute of
limitations. The District Court adopted the Magistrate
Judge’s second Report and Recommendation.


4
  Pearson’s objections to the Magistrate Judge’s Report and
Recommendation were filed sixteen days late. Pearson
claimed that this delay was based on the unavailability of the
prison law library due to the winter holidays. The Magistrate
Judge noted Pearson’s untimely objections and addressed
them on the merits, and the District Court adopted the
Magistrate Judge’s Report and Recommendation. As the
District Court addressed Pearson’s claims on the merits,
despite his untimeliness, we address them as well.
5
  At argument, counsel for the Secretary of the Department of
Corrections asserted that the Magistrate Judge’s reasoning
could be understood to mean that because the PLRA was too
porous—at least partially because the PLRA only required
exhaustion of administrative remedies by litigants that are
currently incarcerated—it cannot be considered a statutory
prohibition under Pennsylvania’s tolling statute. See Ahmed
v. Dragovich, 297 F.3d 201, 210 (3d Cir. 2002)
(acknowledging that the PLRA’s exhaustion requirement is
inapplicable to former prisoners).
                              5
                               III.

                               A.

        The District Court had jurisdiction pursuant to 28
U.S.C. § 1331 and we have jurisdiction pursuant to 28 U.S.C.
§ 1291. We exercise plenary review over a district court’s
grant of a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6). McGovern v. City of Phila., 554 F.3d
114, 115 (3d Cir. 2009). We also exercise plenary review
over a district court’s application of statutes of limitations and
tolling principles. Lake v. Arnold, 232 F.3d 360, 365 (3d Cir.
2000). Lastly, we exercise plenary review over a district
court’s interpretation of state law. Royal Ins. Co. of Am. v.
KSI Trading Corp., 563 F.3d 68, 73 (3d Cir. 2009).

                               B.

        Congress has not codified a statute of limitations
applicable to suits for the vindication of civil rights and has
instead “determined that gaps in federal civil rights acts
should be filled by state law, as long as that law is not
inconsistent with federal law.” Hardin v. Straub, 490 U.S.
536, 538 (1989); see also 42 U.S.C. § 1988. “[A] § 1983
claim is governed by the statute of limitations that applies to
personal injury tort claims in the state in which such a claim
arises.” Kach v. Hose, 589 F.3d 626, 639 (3d Cir. 2009).
Additionally, a state’s tolling principles also govern § 1983
claims when they do not conflict with federal law. Id.

        As Pearson’s § 1983 claims arise in Pennsylvania, we
must apply Pennsylvania’s statute of limitations. Under
Pennsylvania law, personal injury claims must be brought
within two years of the accrual of the claim. 42 Pa. Cons.
Stat. § 5524(7). Pennsylvania law also provides that “[w]here
the commencement of a civil action or proceeding has been
stayed by a court or by statutory prohibition, the duration of
the stay is not a part of the time within which the action or
proceeding must be commenced.” 42 Pa. Cons. Stat. §
5535(b) (emphasis added). The PLRA states that “[n]o action
shall be brought with respect to prison conditions under
section 1983 of this title, or any other Federal law, by a
prisoner confined in any jail, prison, or other correctional

                                6
facility until such administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a). Therefore, the timeliness
of Pearson’s § 1983 claims hinges on whether the PLRA’s
exhaustion requirement is a “statutory prohibition” under
Pennsylvania’s tolling statute, and if so, how long the statute
of limitations is tolled on Pearson’s claims.

       We have previously addressed this issue in non-
precedential opinions. Most recently, we stated: “[t]hough
this Court has not spoken on the issue, several courts of
appeals have held that, because exhaustion of prison
administrative remedies is mandatory under the [PLRA], the
statute of limitations applicable to § 1983 actions should be
tolled while a prisoner exhausts.” Pressley v. Huber, 562
Fed. App’x 67, 70 (3d Cir. 2014) (per curiam); see also
Paluch v. Sec’y Pa. Dep’t Corr., 442 Fed. App’x 690, 694 (3d
Cir. 2011) (per curiam) (holding that “[b]ecause exhaustion of
prison administrative remedies is mandatory under the
[PLRA], the statute of limitations available to § 1983 actions
may be tolled while a prisoner exhausts.”)

        The Seventh Circuit has analyzed this issue based on
Illinois’ tolling statute, which contains the same “statutory
prohibition” tolling provision as the Pennsylvania statute.
Johnson v. Rivera, 272 F.3d 519, 521–22 (7th Cir. 2001).
The Johnson court held that Illinois’ tolling statute applies to
the exhaustion requirement of the PLRA and noted the
“procedural catch 22” that would exist if the statute of
limitations were not tolled. Id. (“The ‘catch 22’ in this case is
self-evident: the prisoner who files suit under § 1983 prior to
exhausting administrative remedies risks dismissal based
upon [the PLRA]; whereas the prisoner who waits to exhaust
his administrative remedies risks dismissal based upon
untimeliness.”). The Fifth Circuit similarly concluded, based
on a textual reading of Louisiana’s tolling statute, that
Louisiana’s statute of limitations is tolled while a prisoner
exhausts administrative remedies. Harris v. Hegmann, 198
F.3d 153, 156–59 (5th Cir. 1999). These two opinions are
instructive as the tolling statutes contain language similar to
Pennsylvania’s tolling statute.6

6
 Other circuits, by explicitly or implicitly utilizing the
doctrine of federal equitable tolling, have concluded that
                               7
        Additionally, the district courts in Pennsylvania have
almost uniformly concluded, by construing opinions of other
courts of appeals and our non-precedential opinions on this
issue, that Pennsylvania’s statute of limitations is tolled while
a prisoner exhausts administrative remedies. See, e.g.,
Walton v. Walton, No. 13–1109, 2014 WL 4348170, at *6–7
(W.D. Pa. Sept. 2, 2014); Robinson v. Prison Health Servs.,
No. 10–7165, 2014 WL 2452132, at *4 (E.D. Pa. June 2,
2014); Ozoroski v. Maue, No. 08–0082, 2009 WL 414272, at
*6–7 (M.D. Pa. Feb. 18, 2009).

       One district court reasoned to the contrary, stating that
“[t]he limitations period for an inmate’s civil claim does not
run from the date of exhaustion of administrative remedies,
nor is it tolled while remedies are being exhausted, even
though exhaustion of those administrative remedies is
mandatory.” Vantassel v. Rozum, No. 08–0171, 2009 WL
1833601, at *2 (W.D. Pa. June 25, 2009), aff’d on other
grounds, 469 Fed. App’x 110 (3d Cir. 2012) (per curiam).7

        In his Report and Recommendation, the Magistrate
Judge in this case focused on congressional intent to reduce
prisoner litigation and concluded that the PLRA is not a
“statutory prohibition” under Pennsylvania’s tolling statute
because the issue of whether to provide and utilize
administrative remedies is left to the state and litigant; the

statutes of limitations in other states are tolled while a
prisoner exhausts. See Gonzalez v. Hasty, 651 F.3d 318, 322–
24 (2d Cir. 2011); Brown v. Valoff, 422 F.3d 926, 942–43
(9th Cir. 2005); Brown v. Morgan, 209 F.3d 595, 596–97 (6th
Cir. 2000). As we are not deciding this case on the basis of
equitable tolling, we note the existence of these cases, but do
not rely upon them.
7
  We note that the same Magistrate Judge and District Judge
in this case also presided over Vantassel. In that case, we
affirmed the judgment on other grounds, notably, because the
prisoner in this case had filed a faulty Rule 60(b) motion and
because the prisoner’s notice of appeal for his Rule 59(e)
motion was untimely, and therefore we lacked jurisdiction to
review it. Vantassel, 469 Fed App’x at 111–12.

                               8
District Court adopted the Report and Recommendation. This
reasoning confuses the issue. There is no ambiguity in the
PLRA: it is clearly a statutory prohibition that prevents a
prisoner from filing § 1983 actions until the prisoner exhausts
all administrative remedies. 42 U.S.C. § 1997e(a).

        Additionally, the availability of state remedies is
irrelevant as the PLRA does not require a prisoner to rely on
state remedies in lieu of a § 1983 claim. Rather, the PLRA
merely requires exhaustion of administrative remedies prior
to the initiation of a § 1983 claim.8 This conclusion is
supported by nearly all of the precedents in this and other
circuits.

       As we have concluded that the PLRA is a statutory
prohibition that tolls Pennsylvania’s statute of limitations
while a prisoner exhausts administrative remedies, we need
not address Pearson’s federal equitable tolling argument.

                               C.

       We now address Pearson’s timely retaliatory discharge
claim. “When considering an appeal from a Rule 12(b)(6)
dismissal, we must accept all well-pled allegations in the
complaint as true and draw all reasonable inferences in favor
of the non-moving party.” Brown v. Card Serv. Ctr., 464
F.3d 450, 452 (3d Cir. 2006). We construe the pleadings of
pro se litigants liberally. Dluhos v. Strasberg, 321 F.3d 365,
369 (3d Cir. 2003).


8
  We also do not agree with the Secretary of the Department
of Corrections’ argument that the PLRA is not a statutory
prohibition because the statute is too porous, apparently
because it only applies to those who are currently
incarcerated. The PLRA prohibits currently incarcerated
prisoners from filing § 1983 claims prior to exhausting
administrative remedies, which is a statutory prohibition
under Pennsylvania’s tolling statute. See 42 U.S.C. §
1997e(a); 42 Pa. Cons. Stat. § 5535(b). To the extent that the
PLRA does not require former prisoners to exhaust
administrative remedies prior to filing § 1983 suits, it is of no
moment, as current prisoners still face a statutory prohibition.
                                9
       “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim is facially
plausible when the facts alleged in the complaint allow a
court to draw a reasonable inference that the defendant is
liable. Id. However, mere “[t]hreadbare recitals of the
elements of a cause of action, supported by conclusory
statements” are insufficient to survive a motion to dismiss.
Id.

        Pearson pleads in his complaint what could be
considered a pattern of antagonism that evidences his
retaliatory dismissal.     Perhaps even more importantly,
Pearson also pleads in his complaint that Unit Manager
Hunter told him that he was terminated in retaliation for filing
his grievances. Of course, his complaint is not without its
weaknesses, as the last instance of antagonism, aside from an
argument with Clippinger and his cell relocation, occurred
nearly a year prior to Pearson’s termination. While temporal
proximity is often important to establish retaliation, “the mere
passage of time is not legally conclusive proof against
retaliation.” Woodson v. Scott Paper Co., 109 F.3d 913, 920
(3d Cir. 1997) (internal quotation marks and citation omitted).
We must accept Pearson’s allegations as true and draw all
reasonable inferences in his favor. Brown, 464 F.3d at 452.
We find that Pearson has pled sufficient facts to state a claim
upon which relief can be granted, especially when we
consider his allegation that Hunter admitted that Pearson’s
termination was retaliatory.

                              IV.

       Because we hold that the PLRA is a statutory
prohibition under Pennsylvania’s tolling statute, we reverse
the District Court’s order dismissing Pearson’s complaint.
We remand the case to the District Court for a determination
of whether Pearson exhausted his administrative remedies on
all of his § 1983 claims. Regarding the claims that the
District Court initially determined were untimely, if the court
determines that Pearson exhausted his administrative
remedies, the court should then determine what period of time

                              10
is tolled during the exhaustion and whether those claims are
timely. With respect to Pearson’s retaliatory discharge claim,
if the District Court determines that Pearson has exhausted his
administrative remedies, the matter should proceed to
discovery.




                              11
