VALLEJO v. UNITED STATES OF AMERICA et al

Filing 9

MEMORANDUM OPINION FILED. Signed by Judge Noel L. Hillman on 9/18/17. (js)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
:
:
Plaintiff,
:
:
v.
:
:
UNITED STATES OF AMERICA,
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et al.,
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:
Defendants.
:
______________________________:
CARLOS VALLEJO,

Civ. No. 13-5455 (NLH)
MEMORANDUM OPINION

IT APPEARING THAT:
1.

This matter comes before the Court upon a civil rights

complaint filed by Plaintiff Carlos Vallejo (“Plaintiff”).
2.

Plaintiff filed the initial Complaint in this matter on

September 8, 2013, alleging claims pursuant to Bivens v. Six
Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), and the
Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2401, 2671, et
seq., based on the Drug Enforcement Administration’s seizure of
Plaintiff’s property during his arrest on January 25, 2007. 1
3.

Pursuant to 28 U.S.C. §§ 1915, 1915A, the Court

conducted its sua sponte screening of the Complaint and

1

The Court notes the recent decision of Ziglar v. Abbasi, in which
the Supreme Court discussed the limited scope of Bivens actions.
137 S. Ct. 1843 (2017).
At this time, when Plaintiff has not
shown that he is entitled to equitable tolling, the Court assumes
without deciding that his Bivens claims remain viable in the light
of Ziglar.

dismissed all claims as time barred.

(ECF Nos. 6, 7.)

The

dismissal was without prejudice and the Court allowed Plaintiff
to file an amended complaint within 30 days if he could
establish grounds for tolling.
4.

(Id.)

A year and a half later, Plaintiff filed the instant

motion seeking permission to file an amended complaint. 2

(Mot.,

ECF No. 8.)
5.

In his proposed Amended Complaint, Plaintiff raises

only a Bivens claim and addresses the issue of equitable
tolling, albeit using the standard for tolling of the one year
statute of limitations period for habeas petitions set forth by
the Antiterrorism and Effective Death Penalty Act of 1996.

(Id.

at 11-13.)
6.

As applicable in this case,
[e]quitable tolling…is “a rare remedy to be
applied in unusual circumstances.”
Wallace
v. Kato, 549 U.S. 384, 396 (2007).
“It is
only appropriate ‘(1) where the defendant has
actively misled the plaintiff respecting the
plaintiff's cause of action; (2) where the
plaintiff in some extraordinary way has been
prevented from asserting his or her rights; or
(3) where the plaintiff has timely asserted
his or her rights mistakenly in the wrong
forum.’” Omar v. Blackman, 590 F. App’x 162,
166 (3d Cir. 2014) (quoting Santos ex rel
Beato v. United States, 559 F.3d 189, 197 (3d

2

Plaintiff’s Motion also includes references to relief under
Federal Rule of Civil Procedure 60(b)(6).
However, it appears
that the “relief” he is seeking under that Rule is just permission
to file an amended complaint with an equitable tolling argument.

Cir. 2009)).
“To obtain the benefit of
equitable tolling, a party also must show that
‘she exercised due diligence in pursuing and
preserving her claim.’” Id. (quoting Santos,
559 F.3d at 197).
Ricketts v. Weehawken Police Dep't, No. 16-4846, 2017 WL 66385,
at *3 (D.N.J. Jan. 6, 2017).
7.

With regard to tolling, Plaintiff argues that he
has been routinely up on the developments of
his property return. For starters, he filed
a letter back during his criminal case to the
judge, indicating that his counsel was failing
to perform his duties in a required manner.
Moreover, after his counsel misled him and
failed to file the return of property motion,
and having received no information, plaintiff
filed his own pro se complaint for its return,
doing the best that he could without any law
knowledge at all. Meanwhile throughout all of
this, plaintiff was also working upon a 2255
Habeas petition, of which this court has
perused over and an evidentiary hearing is
pending for this habeas. Thus, plaintiff has
been juggling many issues at the same time. It
just so happens that the legal counsel
malfeasance discussed herein, is similar to []
that of the §2255 petition.

(Mot. 12.)
8.

At this juncture, the Court finds that Plaintiff has

not alleged facts sufficient to justify equitable tolling.
Though he states that counsel misled him and failed to file the
motion as requested, he provides no specific information.

It is

unclear when counsel informed him he filed the motion; when and
how Plaintiff followed up with counsel about the motion; when he

learned that counsel had not filed the motion, etc.

With such

limited information, the Court is unable to determine whether
Plaintiff acted diligently and whether he was in some
extraordinary way prevented from asserting his rights.

Santos,

559 F.3d at 197.
9.

Because Plaintiff is proceed pro se, the Court will

permit Plaintiff one final opportunity to show that he is
entitled to equitable tolling, as discussed in this Memorandum
Opinion.
10.

An appropriate order follows.

Dated: September 18, 2017
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.