Peter J. Sorokaput v. NICK FARE, Correctional Officer On Appeal from the United States District Court for…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 21-2188
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PETER J. SOROKAPUT,
Appellant
v.
NICK FARE, Correctional Officer
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 4-21-cv-00740)
District Judge: Honorable Matthew W. Brann
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Submitted Pursuant to Third Circuit LAR 34.1(a)
May 25, 2022
Before: GREENAWAY, JR., PORTER and NYGAARD, Circuit Judges
(Opinion filed: August 2, 2022)
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OPINION*
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PER CURIAM
Appellant Peter Sorokaput appeals from the District Court’s order sua sponte
dismissing his complaint with prejudice pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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1915A as untimely and legally frivolous. For the reasons set forth below, we will vacate
the District Court’s judgment and remand for further proceedings.
I.
In April 2021, Sorokaput, an inmate confined at the State Correctional Institution
in Albion, Pennsylvania (“SCI-Albion”), filed a pro se civil rights complaint pursuant to
42 U.S.C. § 1983, alleging the use of excessive force by correctional officer Nick Fare.
Sorokaput alleged that on February 22, 2019, while lying on his bed in his cell, Fare
entered and threw him to the floor, punched and kicked him, and attempted to slam his
head into the floor. Sorokaput further asserted that “Schuylkill County should be blamed
for [their] actions the cop, the DA office cause of prosecutorial misconduct. Defamation
of character, lost my job house, wages, friends and reputation in the community and
family.” Sorokaput went on to allege that he was “bribed by cop to act dishonestly while
he offered me a favor to talk to the DA for me about my sentence. [H]e also badgered me
coerced me, forced me to confess to a crime I never committed and false imprisonment
cop had no such evidence or a probable cause to stop me or search me. Malicious
prosecution.” Compl. at 5. As to these events, Sorokaput alleged no time frame or
involvement by Fare.
By order entered June 10, 2021, the District Court found the only well-pleaded
allegation to be the excessive force claim and sua sponte dismissed the complaint with
prejudice as time-barred and thus legally frivolous under 28 U.S.C. §§ 1915(e)(2)(B)(i)
and 1915A(b)(1), and declined to exercise supplemental jurisdiction over any potential

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state law claims. In support, the District Court found a statute of limitations defense
apparent on the face of the complaint, with no grounds for equitable tolling. Sorokaput
filed a timely notice of appeal.
II.
We have jurisdiction under 28 U.S.C. § 1291, and exercise plenary review of a
district court’s sua sponte dismissal pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and
1915A(b)(1). See Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). Ordinarily, the
running of the statute of limitations is an affirmative defense. See Fed. R. Civ. P. 8(c).
“A complaint is subject to dismissal for failure to state a claim on statute of limitations
grounds only when the statute of limitations defense is apparent on the face of the
complaint.” Wisniewski v. Fisher, 857 F.3d 152, 157 (3d Cir. 2017) (citing Schmidt v.
Skolas, 770 F.3d 241, 249 (3d Cir. 2014)).
We conclude that the District Court erred in dismissing, at this stage, Sorokaput’s
claim based on the statute of limitations. As the District Court recognized, the statute of
limitations for a § 1983 claim in Pennsylvania is two years, and the cause of action
accrues when the plaintiff knew or should have known of the injury on which the action
is based. Id. at 157-58. Excessive force claims typically accrue on the date of the alleged
assault because, at that point, “the plaintiff knows or has reason to know of the injury
which is the basis of the section 1983 action.” Montgomery v. De Simone, 159 F.3d 120,
126 (3d Cir. 1998). Absent tolling, Sorokaput’s April 2021 complaint alleging excessive
force occurring in February 2019 would be time barred.

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This Court has held, however, that the exhaustion requirement mandated by the
Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), “is a statutory prohibition
that tolls Pennsylvania’s statute of limitations while a prisoner exhausts administrative
remedies.” Pearson v. Sec’y Dep’t of Corr., 775 F.3d 598, 603 (3d Cir. 2015). In the
instant case, the time period between the expiration of the statute of limitations and the
filing of the complaint is a matter of weeks. If Sorokaput exhausted his administrative
remedies, as required by the PLRA, it is conceivable that tolling would place his
complaint within the statute of limitations. While Sorokaput’s complaint is silent as to
the pursuit of administrative grievances, failure to exhaust administrative remedies is an
affirmative defense under the PLRA and “inmates are not required to specially plead or
demonstrate exhaustion in their complaints.” Jones v. Bock, 549 U.S. 199, 216 (2007);
see also Small v. Camden County, 728 F.3d 265, 268 (3d Cir. 2013) (“Failure to exhaust
is an affirmative defense the defendant must plead and prove; it is not a pleading
requirement for the prisoner-plaintiff.”). The District Court’s own paperwork, sent to
Sorokaput on April 23, 2021, included “Instructions for Filing a Complaint by Pro Se
Prisoners,” which advised of the PLRA’s exhaustion requirements while noting that “you
are not required to plead or show that you have exhausted your claim in your complaint.”
D. Ct. ECF No. 3-2 at 4.
Although Sorokaput’s allegation of excessive force occurred just over two years
prior to the filing of his complaint, we cannot say that it is apparent on the face of the
complaint that his claim is time barred by the statute of limitations. We conclude that the

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District Court erred in dismissing the complaint as time barred without considering
whether Sorokaput properly exhausted administrative remedies, and to what extent the
limitations period might be tolled as a result. We express no view as to whether
Sorokaput’s underlying claim will prevail, or whether defenses, such as the statute of
limitations or failure to exhaust, will prove dispositive.
III.
For the foregoing reasons, we will vacate the District Court’s judgment dismissing
Sorokaput’s complaint based on statute of limitations grounds. We will remand for
further proceedings consistent with this opinion.

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