SHAW v. BROWN et al

Filing 4

OPINION. Signed by Judge Renee Marie Bumb on 9/30/2013. (bdk, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_______________________________________
:
DON C. SHAW,
:
: Civil Action No. 13-2086 (RMB)
Plaintiff,
:
:
v.
:
MEMORANDUM OPINION
:
STEVE BROWN et al.,
:
:
Defendants.
:
_______________________________________
:
This matter comes before the Court upon Petitioner’s
submission

of his application to proceed in this matter in forma

pauperis, and it is appearing that:
On November 11, 2011, the Clerk received Plaintiff’s civil
complaint and his application seeking in forma pauperis status.
See Shaw v. Brown (“Shaw-I”), Civil Action No. 11-5875 (RMB)
(D.N.J.) (commenced 10/11/2011, terminated 5/30/2012).
In his Shaw-I pleading, Plaintiff “state[d] that[,] on June
11, 2008, [D]efendant Trooper Steve Brown, searched him without
legal justification and falsely arrested him.”

Id., Docket Entry

No. 2, at 2.
This Court granted Plaintiff in forma pauperis status for
the purposes of Shaw-I and dismissed the Shaw-I pleading as
untimely, explaining to Plaintiff that, “[i]n New Jersey, the
statute of limitations for personal injury claims, and thus for
Section 1983 claims, is two years, . . . [and] Section 1983

claims of false arrest and false imprisonment, where such arrest
and imprisonment . . . accrue upon the plaintiff’s arraignment,
or other legal process.”

Id. at 5-6.

Since “Plaintiff was

arrested . . . in 2008, and did not file [his Shaw-I] complaint
until September of 2011, . . . his claims [have become] time
barred.”

Id. at 6.

The Court, however, dismissed Plaintiff’s

Shaw-I challenges without prejudice to establishing a valid basis
for a statutory or equitable tolling.

See id. at 7 and n.1

(detailing the operations of both tollings).

The Court’s order

to that effect was entered on May 30, 2012 and allowed Plaintiff
45 days to state his facts, if any, in support of his tolling
application, that is, if such were advanced.
Entry No. 3.

See Shaw-I, Docket

Since Plaintiff made no application stating such

facts and seeking tolling, see generally, Shaw-I, Docket, the
Court’s Shaw-I determination became conclusive upon the
expiration of Plaintiff’s time to seek tolling.

Cf. Lopez v.

Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (rejecting litigants’
contention that “a dismissal with leave to amend is not really a
dismissal”).
Almost a year passed by.

On April 3, 2013, the Clerk

received another civil complaint that arrived accompanied with an
insufficient in forma pauperis application; that submission gave
rise to the proceedings at bar.
No. 1.

See Instant Matter, Docket Entry

The Court, therefore, denied Plaintiff in forma pauperis

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status for the purposes of the instant proceedings.
Docket Entry No. 2.

See id.,

On April 25, 2013, Plaintiff submitted a

complete in forma pauperis application, hence verifying his
intent to prosecute this action.

See id., Docket Entry No. 3.

The complaint at bar (“Complaint”) named Trooper Steve Brown
as Defendant and, again, asserted that on June 11, 2008, Trooper
Brown illegally arrested Plaintiff.1
1, at 4.

See id., Docket Entry No.

No statement in the Complaint reflected on the issue of

untimeliness.

See generally, id., Docket Entry No. 1.

Since this Court already extensively detailed to Plaintiff
the timeliness considerations in connection with disposing of
Plaintiff’s Shaw-I challenges, another recital of the same would
be superfluous.
Therefore, Plaintiff’s challenges will be dismissed, again,
as untimely and, in addition, pursuant to the doctrine of res
judicata.

Res judicata, or claim preclusion, is a “defense

assert[able] when a case is essentially identical to one that has
previously been adjudicated.”

R & J Holding Co. v. Redevelopment

Auth. of County of Montgomery, 670 F.3d 420, 427 (3d Cir. 2011),
cert. denied, 132 S. Ct. 2792 (2012).2

Since Petitioner’s

1

In addition, Plaintiff asserted that Trooper Brown
exercised excessive force during the arrest. See Instant Matter,
Docket Entry No. 1, at 4.
2

The courts have the authority to apply the doctrine of
claim preclusion or res judicata sua sponte. See Gleash v.
Yuswak, 308 F.3d 758, 760 (7th Cir.2002); accord Ezekoye v. Ocwen
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instant challenges have already been fully adjudicated in Shaw-I,
they are precluded from re-litigation by res judicata since
Plaintiff was provided with an ample opportunity to seek
equitable or statutory in Shaw-I but elected to forfeit that
opportunity and, moreover, did not address the same concern upon
being expressly notified by this Court about the deficiency of
his claims.3

Accord Newman v. Krintzman,

F.3d

, 2013 U.S.

App. LEXIS 15012 (1st Cir. July 24, 2013) (providing a thoughtful
discussion of all aspects of the issue and concluding that a
dismissal on the basis of untimeliness qualifies as a dismissal
on the merits for the purposes of triggering the res judicata
effect); accord Ball v. Famiglio,

F.3d

, 2013 U.S. App.

LEXIS 16529, at *26 (3d Cir. Aug. 9, 2013) (citing Robinson v.
Johnson, 313 F.3d 128, 135 (3d Cir. 2002), for the observation
that “the law of this Circuit permits a limitations defense to be
raised by a motion under Rule 12(b)(6) [seeking dismissal for
failure to state a claim upon which relief can be granted] 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”).

Federal Bank FSB, 179 F. App’x 111, 114 (3d Cir. 2006).
3

The fact that Plaintiff now added an excessive force
claim to his original false arrest challenge does not alter this
Court’s analysis. See R & J Holding, 670 F.3d at 427 (res
judicata applies “not only to claims actually litigated, but also
to claims which could have been litigated during the first
proceeding if they were part of the same cause of action”).
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Accordingly, the Complaint will be dismissed as time-barred
and pursuant to the doctrine of res judicata.

Such dismissal

will be with prejudice since, in light of Plaintiff’s Shaw-I
litigation and his election not to address the issue of
timeliness in the within Complaint, leave to amend would be
futile.

See Alvin v. Suzuki, 227 F.3d 107, 121 (3d Cir. 2000);

accord Foman v. Davis, 371 U.S. 178, 182 (1962).

An appropriate

Order follows.

s/Renée Marie Bumb
RENÉE MARIE BUMB,
United States District Judge
Dated: September 30, 2013

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