DLD-309                                                          NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                   ___________

                                        No. 17-1282
                                        ___________

                                      JAMES LOMAX,
                                               Appellant

                                              v.

    FRANK TENNIS; RICHARD ELLERS; JOHN SYMONS; MELISSA DELLIPONTI;
      DR. BRUCE BLATT; MICHAEL WERNEROWICZ; CYNTHIA LINK; JACK
      WATERS; DR. JAFFE; PRISON HEALTH SERVICES; WEXFORD HEALTH
                  SERVICES; CORIZON HEALTH SERVICES
                   ____________________________________

                       On Appeal from the United States District Court
                           for the Eastern District of Pennsylvania
                                (D.C. Civil No. 2:16-cv-06566)
                        District Judge: Honorable Timothy J. Savage
                        ____________________________________

    Submitted on a Motion to Proceed In Forma Pauperis, a Motion to Reopen, for Possible
     Dismissal Due to a Jurisdictional Defect, or Possible Dismissal pursuant to 28 U.S.C.
     § 1915(e)(2), or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                        July 20, 2017
             Before: CHAGARES, VANASKIE, and KRAUSE, Circuit Judges

                              (Opinion filed: August 31, 2017)
                                         _________

                                         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.
        James Lomax, a prisoner proceeding pro se, appeals an order of the United States

District Court for the Eastern District of Pennsylvania sua sponte dismissing his civil

rights complaint. For the following reasons, we will summarily vacate and remand for

further proceedings.

       In a complaint signed and submitted to prison authorities for mailing on December

15, 2016, Lomax alleged that prison officials failed to adequately treat his various

medical conditions and retaliated against him for complaining about the inadequate

treatment. The District Court granted Lomax’s motion to proceed in forma pauperis

(IFP) but dismissed the complaint without prejudice under 28 U.S.C. § 1915(e). In

particular, the District Court held that Lomax’s claims were time-barred under the

applicable two-year statute of limitations. Although the District Court provided Lomax

with 30 days to file an amended complaint, he failed to do so. Instead, Lomax appealed.1


1
  On April 12, 2017, the Clerk dismissed the appeal because Lomax failed to submit a
prison account statement in support of his application to proceed IFP. Lomax filed a
motion to reopen and a prison account statement. The motion to reopen is granted
because Lomax demonstrated good cause. See Fed. R. App. P. 3(a); 3rd Cir. LAR 3.3 &
Misc. 107.1(a). The motion to proceed IFP is also granted. See Sinwell v. Shapp, 536
F.2d 15, 19 (3d Cir. 1976). Lomax is required to pay the full $505.00 fee in installments
regardless of the outcome of the appeal. The Court hereby directs the warden or his or
her designee to assess an initial filing fee of 20% of the greater of (a) the average
monthly deposits to the prisoner’s account; or (b) the average monthly balance in the
prisoner’s account for the six month period immediately preceding the filing of the notice
of appeal. The warden, or his or her designee, shall calculate, collect, and forward the
initial payment assessed in this order to the Eastern District of Pennsylvania. In each
succeeding month when the amount in the prisoner’s account exceeds $10.00, the
warden, or his or her designee, shall forward payments to the United States District Court
for the Eastern District of Pennsylvania equaling 20% of the preceding month’s income
credited to the prisoner’s account until the fees are paid. Each payment shall reference
                                             2
       We have jurisdiction under 28 U.S.C. § 1291 and exercise plenary review over the

dismissal of Lomax’s claims.2 See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000);

Algrant v. Evergreen Valley Nurseries Ltd. P’ship, 126 F.3d 178, 181 (3d Cir. 1997).

While the running of the statute of limitations is ordinarily an affirmative defense, a court

may dismiss a time-barred complaint sua sponte if it is obvious from the complaint and

no development of the record is necessary. See, e.g., Fogle v. Pierson, 435 F.3d 1252,

1258 (10th Cir. 2006). When considering a civil rights claim, federal courts apply the

relevant state’s statute of limitations for personal injury actions. Lake v. Arnold, 232

F.3d 360, 368 (3d Cir. 2000). For civil rights actions originating in Pennsylvania, a two-

year statute of limitations applies. Id.

       Accepting Lomax’s allegations as true and drawing all reasonable inferences

therefrom, see Allah, 229 F.3d at 223, we conclude that a limitations bar is not obvious

from the complaint and the material attached to the complaint. Cf. Mayer v. Belichick,

605 F.3d 223, 230 (3d Cir. 2010) (stating that, in addition to the complaint itself, the

court may consider exhibits attached to the complaint, matters of public record, and



the appellate docket number for this appeal. The warden, or his or her designee, shall
forward payments to the appropriate courts simultaneously if there are multiple orders.
2
  Although the District Court dismissed Lomax’s complaint without prejudice, he has,
through his filing of a notice of appeal within the 30 days of the dismissal and through his
later submissions, indicated his intent to stand on the complaint. Therefore, the appeal
will not be dismissed for lack of jurisdiction. See Borelli v. City of Reading, 532 F.2d
950, 951-52 (3d Cir. 1976); Batoff v. State Farm Ins. Co., 977 F.2d 848, 851 n.5 (3d Cir.
1992) (order becomes final where plaintiff given 30 days to amend complaint, but instead
files notice of appeal within that time).
                                              3
undisputedly authentic documents upon which the plaintiff rests his claims). In his

complaint, Lomax alleged        that the events giving rise to his claims occurred from

“2003 to present.” Clearly, some of the allegations in the complaint pertain to incidents

that occurred more than two years before the complaint was filed on December 15, 2016.

But the District Court did not consider that Lomax’s claims were tolled while he

exhausted his administrative remedies through the prison grievance system. See Pearson

v. Sec’y Dep’t of Corr., 775 F.3d 598, 603 (3d Cir. 2015). Notably, his complaint

included forms indicating that the Department of Corrections rendered final decisions on

several of his grievances within two years of the complaint’s date. See Houston v. Lack,

487 U.S. 266, 276 (1988) (stating that a pleading is deemed filed at the time a prisoner

executes it and delivers it to prison authorities for mailing). For instance, on December

17, 2014, the Secretary’s Office of Inmate Grievances and Appeals issued two final

appeal decisions, rejecting Lomax’s claims that he had not been provided with proper

care for degenerative changes in his lower back and for blood in his urine.

       In light of this material, we conclude that it is not obvious that Lomax’s complaint

was filed beyond the applicable the statute of limitations. Accordingly, we will vacate

and remand for further proceedings. See Wisniewski v. Fisher, 857 F.3d 152, 158 (3d

Cir. 2017) (“conclude[ing] that the District Court erred in dismissing … claims as barred

by the statute of limitations without considering whether Wisniewski properly exhausted

administrative remedies and whether and to what extent the limitations period should be

tolled.”). We express no opinion as to whether further development of the facts will
                                             4
ultimately establish the timeliness of any of Lomax’s claims or whether the claims are

otherwise meritorious.




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