                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 10-1406
                                      ___________

                              PEDRO MIQUEL DASILVA,
                                                       Appellant

                                            v.

                                SHERIFF’S DEPARTMENT;
                       CITY OF PHILADELPHIA; PRISON P.I.C.C.
                                 ON STATE ROAD
                      ____________________________________

                    On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                         (D.C. Civil Action No. 09-cv-03588)
                     District Judge: Honorable Legrome D. Davis
                     ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  January 18, 2011
           Before: AMBRO, HARDIMAN and STAPLETON, Circuit Judges

                                (filed: January 20, 2011 )

                                      ___________

                                       OPINION
                                      ___________

PER CURIAM

      Pedro Miquel P. DaSilva appeals from the orders of the United States District

Court for the Eastern District of Pennsylvania dismissing his complaint as frivolous and

denying relief from the judgment. We will vacate the judgment and remand the matter
for further proceedings.

       DaSilva filed a civil rights action pursuant to 42 U.S.C. ' 1983, naming as

defendants the Sheriff=s Department, the City of Philadelphia (ACity@), and Prison

P.I.C.C. on State Road. DaSilva alleged that his constitutional rights were violated when

he was struck in the face several times by an officer of the Sheriff=s Department. The

complaint does not specify a date on which the beating occurred, but DaSilva stated that

he filed a grievance concerning the issue on June 28, 2007. DaSilva, who is now an

inmate of the State Correctional Institution at Cresson, Pennsylvania, signed his

complaint on June 20, 2009, but his accompanying motion for leave to proceed in forma

pauperis (AIFP@) was not certified by the appropriate prison official until July 17, 2009.

The IFP motion was filed on August 6, 2009 and was granted on August 11, 2009, and

the complaint was filed on the docket that same day. The City executed a waiver of

service.

       DaSilva filed a motion to amend the complaint to add as a defendant the Warden

of the prison to which he was being transferred at the time of the beating. Before the

expiration of the time that the City had to respond to the complaint, the District Court

dismissed the complaint as frivolous under 28 U.S.C. ' 1915(e)(2)(B)(i), noting that

DaSilva had not alleged personal involvement on the part of any defendant concerning

the beating. The District Court also denied DaSilva=s motion to amend as moot. Shortly

thereafter, the City filed a motion to dismiss, arguing that the incident allegedly occurred

on or before June 28, 2007, but that the complaint was filed in August 2009, beyond the
                                             2
applicable two-year limitations period. DaSilva filed a document that was construed as a

response to the City=s motion to dismiss though the document did not relate to the

timeliness issue, but rather explained that DaSilva had been unable to ascertain the names

of the officers who assaulted him despite his efforts to do so. By order entered

November 2, 2009, the District Court denied the City=s motion as moot, and struck

DaSilva=s response to the motion from the record.

       On December 14, 2009, DaSilva filed a Rule 60(b) motion for relief from the

September 30, 2009 order. He protested, among other things, that he had not been given

an opportunity to amend his complaint by naming additional defendants and describing

their involvement in the action. By order entered December 31, 2009, the District Court

denied the Rule 60(b) motion, noting that amendment would have been futile because the

action was barred by the statute of limitations. Further, citing a not precedential opinion

by this Court and noting that DaSilva signed his complaint and IFP application within the

presumed bounds of the statute of limitations, the District Court concluded that the

several-week delay by the prison official who certified DaSilva=s prison account balance

did not warrant equitable tolling of the statute of limitations. (See District Court Dec. 31,

2009 Order at 2 (citing Lyons v. Emerick, 187 Fed. Appx. 219, 221 (3d Cir. 2006)(not

precedential))). This appeal followed. We have appellate jurisdiction under 28 U.S.C.

§ 1291.

       We first address the scope of the appeal. DaSilva=s notice of appeal is dated

January 28, 2010 and was filed on February 1, 2010. The City does not dispute the
                                              3
timeliness of the appeal concerning the District Court=s December 31, 2009 order denying

Rule 60(b) relief. DaSilva=s notice of appeal also refers to the District Court=s order

dismissing the case, but the notice was filed outside the time for appeal under Rule

4(a)(1)(A) of the Federal Rules of Appellate Procedure. On this basis, the City asserts

that we lack jurisdiction to review the dismissal order. However, it is clear from the

record that the District Court’s dismissal order did not comply with the separate

document requirement of Rule 58(a), Federal Rules of Civil Procedure. See Leboon v.

Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 224 (3d Cir. 2007) (an order must

“omit (or at least substantially omit) the trial court’s reasons for disposing of the

claims”). For purposes of Rule 4, the District Court’s September 30, 2009 order would

be deemed Aentered@ 150 days after it was entered on the docket, and the Rule 4 deadline

for appeal would run thereafter. See LeBoon, 503 F.3d at 223 (discussing entry of

judgment under Fed. R. App. P. 4(a)(7)(A)(ii) and Fed. R. Civ. P. 58(a)).1 We conclude

that we have jurisdiction to review both of the orders appealed.

       We next address the City’s argument that we need not reach the merits of the

appeal. The City contends that DaSilva has waived all arguments because he fails to

raise any alleged errors by the District Court in his brief. Generally, we agree with the

proposition that an appellant’s failure to present and argue issues in the opening brief


       1
         Although DaSilva=s notice of appeal was filed before the 150-day period
elapsed, that circumstance does not prevent us from entertaining the appeal. LeBoon,
503 F.3d at 224 n.5.

                                               4
would result in waiver of the issues on appeal. See Kost v. Kozakiewicz, 1 F.3d 176, 182

(3d Cir.1993); Fed. R. App. P. 28(a). However, DaSilva proceeds pro se, and

accordingly, we construe his pleadings liberally. See Haines v. Kerner, 404 U.S. 519,

520-21 (1972). We are satisfied that DaSilva’s response to question five in his informal

brief presents a challenge to both the dismissal of his claim as frivolous and the denial of

his motion for relief from judgment. Specifically, DaSilva’s brief expresses his

disagreement with the District Court’s rulings, including the denial of his motion to

amend his complaint. We will proceed to review the merits of the appeal.

       The District Court sua sponte dismissed DaSilva=s complaint under section

1915(e) because DaSilva failed to name the responsible defendants with specificity.

However, the District Court failed to provide any opportunity for DaSilva to amend the

complaint to name those defendants and denied DaSilva’s motion to amend as moot.

Given the early stage of proceedings at the time of dismissal, there is nothing in the

record to suggest that amendment would have been inequitable or futile. See Grayson v.

Mayview State Hosp., 293 F.3d 103, 111 (3d Cir. 2002). It is not impossible that DaSilva

could have named the proper defendants if he had been granted a period of time to file an

amended complaint.2


       2
         Because the City took the position that we lack jurisdiction to review the District
Court’s order dismissing the case and denying DaSilva’s initial motion to amend the
complaint, the City argues that the discretion vested by Federal Rule of Civil Procedure
15 to permit amendment “freely” does not apply to this case. Instead, the City argues that
DaSilva’s post-judgment request to amend was subject to the Rule 60(b) standard for
reopening, and, as of that late date, DaSilva could not have met the notice requirements
                                              5
       The District Court’s later decision denying DaSilva=s motion to reopen

acknowledges Grayson but concludes that amendment would be futile because the action

was barred by the statute of limitations. This decision is problematic in light of the

procedural history of the case. The District Court’s dismissal of the complaint was a sua

sponte decision under section 1915(e). Although the City raised the statute of limitations

in its motion to dismiss, the motion was dismissed as moot. Thus, DaSilva had no viable

opportunity to respond to the City=s statute of limitations arguments given that the case

already had been dismissed. Indeed, the District Court ordered that DaSilva=s response to

the City=s mooted motion to dismiss be struck from the record.

       The statute of limitations is an affirmative defense. See Fed. R. Civ. P. 8(c). This

Court has not addressed the issue in a precedential decision, but other courts have held

that, while the statute of limitations is an affirmative defense, a district court may sua

sponte dismiss a complaint under section 1915(e) on this basis when the defense is

obvious from the complaint and no development of the factual record is required. See,

e.g., Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006). In this case, the District

Court determined that DaSilva missed the applicable two-year deadline for filing suit by

little more than one month. The record reflects that DaSilva signed the complaint on

June 20, 2009--a date within the limitations period used by the District Court--but that the



of Rules 15(c) and 4(m) for any amendment to “relate back” under Rule 15(c). We have
rejected the argument that we lack jurisdiction to review the District Court’s September
30, 2009 order, and thus, we reject the City’s arguments that we should view the case
only through a post-judgment lens.
                                              6
complaint was not “filed” until after the District Court issued its August 11, 2009 order

granting DaSilva’s IFP application and directing the complaint to be filed. However, the

record as it now exists for our review does not show when the complaint was actually

submitted to the clerk for filing. See Urrutia v. Harrisburg County Police Dep’t, 91 F.3d

451, 457 and n.8 (statute of limitations is met when a complaint is “submitted” to the

clerk before the statute runs; formal filing of the complaint relates back to the date of

submission); McDowell v. Delaware, 88 F.3d 188, 191 (3d Cir. 1996) (complaint is

deemed constructively filed as of the date the clerk received the complaint, even if it is

not formally filed until the fee requirement is ultimately met). While the IFP application

bears a prison certification date of July 17, 2009, the complaint bears no other date than

the date on which it was signed, June 20, 2009. Although it may be that the IFP

application and complaint were submitted to the clerk on the same date, the record as it

stands is not conclusive on this point.

       In addition, although the District Court rejected an anticipated possible equitable

tolling argument based on the prison’s delay in certifying DaSilva=s account balance, we

are not bound by the not precedential decision in Lyons. Moreover, notwithstanding

Lyons, DaSilva might well have another equitable tolling argument that he had no

opportunity to present.3 We conclude that it is not “patently clear” from the record before



       3
         We note that, in a document filed with the District Court on March 1, 2010 as
well as in his informal brief in our Court, DaSilva indicated that he was abandoned by his
attorney about seventeen months after the incident occurred. This may also provide a
                                              7
us that the District Court’s sua sponte dismissal and denial of reopening were justified on

the statute of limitations basis. See Fogle, 435 F.3d at 1258-59 (sua sponte dismissal on

statute of limitations grounds would not be appropriate where it is not patently clear that

equitable tolling would not apply).

       For the foregoing reasons, we will vacate the judgment of the District Court and

remand for further proceedings.




basis for tolling the statute of limitations. Nara v. Frank, 264 F.3d 310, 320 (3d Cir.
2001) (remanding so that district court could conduct a hearing to determine whether
plaintiff-appellant was entitled to equitable tolling based on attorney abandonment).
Additionally, it may be appropriate to toll the statute of limitations for the period during
which DaSilva was exhausting his prison remedies, though we do not decide that issue
today. See, e.g., Johnson v. Rivera, 272 F.3d 519, 522 (7th Cir. 2001) (ordinarily,
administrative grievance process tolls the statute of limitations for a § 1983 action).

                                              8
