CANNON v. FOSTER et al

Filing 2

OPINION. Signed by Chief Judge Jerome B. Simandle on 7/14/2014. (bdk, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

HYSHON CANNON,
Plaintiff,
v.
B. FOSTER, et al.,
Defendants.

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Civil No. 13-6956 (JBS)

OPINION

APPEARANCES:
Hyshon Cannon, Pro Se
# 139191C
South Woods State Prison
215 Burlington Road South
Bridgeton, NJ 08302
SIMANDLE, Chief Judge
Plaintiff, Hyshon Cannon, confined at the South Woods State
Prison, Bridgeton, New Jersey, submitted a civil Complaint alleging
violations of his constitutional rights and an application to proceed
in forma pauperis (“IFP”). Based on the submissions, the Court will
grant Plaintiff's application pursuant to 28 U.S.C. § 1915(a) and
order the Clerk of the Court to file the Complaint.
The Court must now review the Complaint pursuant to 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A(b) to determine whether it should be

dismissed as frivolous or malicious, for failure to state a claim
upon which relief may be granted, or because it seeks monetary relief
from a defendant who is immune from such relief. For the reasons set
forth below, the Court concludes that Plaintiff's Complaint should
be dismissed for failure to state a claim.
BACKGROUND
The following facts are ascertained from Plaintiff’s “Statement
of Claims” attached to his Complaint.
Plaintiff states that in 2009, he was a pretrial detainee at
the Camden County Jail. At some point in August or September of 2009,
Plaintiff alleges that he was assaulted by Defendant Officer Foster
during a count after asking to speak with the Officer’s Superior
concerning visitation. Plaintiff asserts that he was choked and kneed
in the neck area, and “delivered undeserved blows to [his] body.”
Another officer came to his aid and Plaintiff was sent to the medical
department. Jail staff reviewed the surveillance video of the
incident, and it was determined that Plaintiff had done nothing
wrong.
Plaintiff was interviewed by Internal Affairs and told that he
would be contacted by the Camden County Prosecutor’s Office
concerning the assault. To date, he is still waiting to be interviewed
by the Prosecutor’s Office.
Plaintiff filed no administrative remedies, and filed this
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complaint in September of 2013, approximately four years after the
assault. He seeks monetary relief.
DISCUSSION
1. Standards for a Sua Sponte Dismissal
Per the Prison Litigation Reform Act, Pub. L. No. 104-134, §§
801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996) (“PLRA”),
district courts must review complaints in those civil actions in
which a prisoner is proceeding in forma pauperis, see 28 U.S.C. §
1915(e)(2)(B), seeks redress against a governmental employee or
entity, see 28 U.S.C. § 1915A(b), or brings a claim with respect to
prison conditions, see 28 U.S.C. § 1997e.

The PLRA directs district

courts to sua sponte dismiss any claim that is frivolous, is
malicious, fails to state a claim upon which relief may be granted,
or seeks monetary relief from a defendant who is immune from such
relief.

This action is subject to sua sponte screening for dismissal

under 28 U.S.C. § 1915(e) and § 1915A because Plaintiff is a prisoner
and is proceeding as an indigent.
According to the Supreme Court’s decision in Ashcroft v. Iqbal,
“a pleading that offers ‘labels or conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’” 556
U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007)).

To survive sua sponte screening for failure

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to state a claim,1 the complaint must allege “sufficient factual
matter” to show that the claim is facially plausible.

Fowler v. UPMS

Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (citation omitted).

“A

claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”

Belmont v. MB

Inv. Partners, Inc., 708 F.3d 470, 483 n.17 (3d Cir. 2012) (quoting
Iqbal, 556 U.S. at 678).

Moreover, while pro se pleadings are

liberally construed, “pro se litigants still must allege sufficient
facts in their complaints to support a claim.”

Mala v. Crown Bay

Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citation omitted)
(emphasis added).
2.

Section 1983 Actions
A plaintiff may have a cause of action under 42 U.S.C. § 1983

for certain violations of his constitutional rights. Section 1983
provides in relevant part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory ...
subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured
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“The legal standard for dismissing a complaint for failure to
state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) is the same
as that for dismissing a complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6).” Schreane v. Seana, 506 F. App’x 120, 122 (3d
Cir. 2012) (citing Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir.
2000)); Mitchell v. Beard, 492 F. App’x 230, 232 (3d Cir. 2012)
(discussing 28 U.S.C. § 1997e(c)(1)); Courteau v. United States, 287
F. App’x 159, 162 (3d Cir. 2008) (discussing 28 U.S.C. § 1915A(b)).
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by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper
proceeding for redress ....
Thus, to state a claim for relief under § 1983, a plaintiff must
allege, first, the violation of a right secured by the Constitution
or laws of the United States and, second, that the alleged deprivation
was committed or caused by a person acting under color of state law.
See West v. Atkins, 487 U.S. 42, 48 (1988); Malleus v. George, 641
F.3d 560, 563 (3d Cir. 2011).
3.

Plaintiff’s Complaint is Unexhausted and Time-Barred.
No action may be brought by a prisoner with respect to prison

conditions unless the prisoner has exhausted available
administrative remedies. See 42 U.S.C. § 1997e(a). Specifically, 42
U.S.C. § 1997e(a) provides:
No action shall be brought with respect to prison
conditions under section 1983 of this title, or any other
Federal law, by a prisoner confined in any jail, prison,
or other correctional facility until such administrative
remedies as are available are exhausted.

“[T]he ... exhaustion requirement applies to all inmate suits about
prison life, whether they involve general circumstances or
particular episodes, and whether they allege excessive force or some
other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002) (citation
omitted). Although failure to exhaust is an affirmative defense which
must be pled by the defendant, a district court has inherent power

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to dismiss a complaint which facially violates this bar to suit. See
Ray v. Kertes, 285 F.3d 287, 293 n.5 (3d Cir. 2002); Nyhuis v. Reno,
204 F.3d 65 (3d Cir. 2000).
The Third Circuit observed in Nyhuis, however, that an inmate
may satisfy § 1997e(a) through substantial compliance. “Without
embellishing—for the case law in the area will have to develop—we
note our understanding that compliance with the administrative
remedy scheme will be satisfactory if it is substantial.” Nyhuis,
204 F.3d at 77–8; see also Veteto v. Miller, 794 F .2d 98, 99–100
(3d Cir. 1986) (vacating sua sponte dismissal based upon failure to
exhaust BOP's Administrative Remedy Program where prisoner alleged
that he had “repeatedly requested administrative remedies” from the
defendants with no response or success, and remanding to enable
plaintiff “to amend his complaint so as to supply more specific facts
on this subject and to enable the court to hold a preliminary hearing,
if needed”).
Here, Plaintiff plainly states outright that he did not exhaust
administrative remedies. (Complt., ¶ 5, marking “No” in response to
“I previously have sought informal or formal relief from the
appropriate administrative officials regarding the acts complained
of in the Statement of Claims on page 6.”). As an explanation for
his failure to exhaust, Plaintiff states that Internal Affairs
contacted him and advised him that he “would be contacted by the
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Camden County Prosecutor’s Office for possible criminal charges to
be filed against the Officer Defendants directly involved in the
assault.” (Complt., ¶ 5 (cont’d)). As of the date of the Complaint,
the Prosecutor’s Office had yet to contact him.
Besides being unexhausted, Plaintiff’s complaint is untimely.
Failure to meet the limitations period is an affirmative defense that
must generally be pleaded and proved by the defendants. See Bethel
v. Jendoco Const. Corp., 570 F.2d 1168, 1174 (3d Cir. 1978) (statute
of limitations on civil rights claim is an affirmative defense).
While a plaintiff is not required to plead that the claim has been
brought within the statute of limitations, Ray v. Kertes, 285 F.3d
287, 297 (3d Cir. 2002), the Supreme Court observed in Jones v. Bock,
549 U.S. 199, 215 (2007), that if the allegations of a complaint,
“show that relief is barred by the applicable statute of limitations,
the complaint is subject to dismissal for failure to state a claim.”
Recently, the Court of Appeals for the Third Circuit reviewed the
timeliness of a § 1983 complaint and held that: “Although the statute
of limitations is an affirmative defense, sua sponte dismissal is
appropriate when ‘the defense is obvious from the face of the
complaint and no further factual record is required to be
developed.’” Cruz v. SCI-SMR Dietary Services, -- F. App’x --, 2014
WL 1758901 at *1 (3d Cir. May 5, 2014)(quoting Fogle v. Pierson, 435
F.3d 1252, 1258 (10th Cir. 2006))(other citations omitted).
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The statute of limitations on civil rights claims is governed
by New Jersey's two-year limitations period for personal injury. See
Wilson v. Garcia, 471 U.S. 261, 276 (1985); Dique v. New Jersey State
Police, 603 F.3d 181, 185 (3d Cir. 2010); O'Connor v. City of Newark,
440 F.3d 125, 126–27 (3d Cir. 2006). This statute requires that “an
action for an injury to the person caused by a wrongful act, neglect,
or default, must be convened within two years of accrual of the cause
of action.” Cito v. Bridgewater Township Police Dep’t, 892 F.2d 23,
25 (3d Cir. 1989) (quoting Brown v. Foley, 810 F.2d 55, 56 (3d Cir.
1987)).
“Accrual is the occurrence of damages caused by a wrongful
act.... [T]he tort cause of action accrues, and the statute of
limitations commences to run, when the wrongful act or omission
results in damages.” Dique, 603 F.3d at 185–86 (citations and
internal quotation marks omitted); see also Montgomery v. De Simone,
159 F.3d 120, 126 (3d Cir. 1998) (“the limitations period begins to
run from the time when the plaintiff knows or has reason to know of
the injury which is the basis of the section 1983 action”); Sameric
Corp. of Del., Inc. v. City of Philadelphia, 142 F.3d 582, 599 (3d
Cir. 1998) (“A [§ ] 1983 cause of action accrues when the plaintiff
knew or should have known of the injury upon which [his] action is
based.”).
Here, Plaintiff does not give the exact date of the assault
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against him, only stating that it occurred in 2009. Plaintiff did
not sign the instant complaint until September of 2013, well past
the limitations period.
Plaintiff’s complaint illustrates that he is aware that he has
not exhausted his administrative remedies and is filing beyond the
limitations period; however, he asks this Court to excuse these
gatekeeping requirements, stating:
Unfortunately, it wasn’t until I came to prison that
I was made aware by a paralegal that I could seek a remedy
in which relief may be granted via [42 U.S.C § 1983]. So
I plead to the Court to be understanding of my “excusable
neglect” for lacking a superior knowledge of the law and
Rules that govern the Court and also consider the merit
of the claim and the relief that is sought from a person
who has suffered an injustice because an unjust law carries
with it a duty of disobedience. Respectfully, I ask that
the District Court not dismiss my claim with prejudice
because I am out of time on the two year statute of
limitation.
New Jersey statutes set forth certain bases for “statutory
tolling.” See, e.g., N.J.S.A. § 2A:14–21 (detailing tolling because
of minority or insanity); N.J.S.A. § 2A 14–22 (detailing tolling
because of nonresidency of persons liable). New Jersey law permits
“equitable tolling” where “the complainant has been induced or
tricked by his adversary's misconduct into allowing the filing
deadline to pass,” or where a plaintiff has “in some extraordinary
way” been prevented from asserting his rights, or where a plaintiff
has timely asserted his rights mistakenly by either defective

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pleading or in the wrong forum. See Freeman v. State, 347 N.J. Super.
11, 31 (citations omitted), certif. denied, 172 N.J. 178 (2002).
“However, absent a showing of intentional inducement or trickery by
a defendant, the doctrine of equitable tolling should be applied
sparingly and only in the rare situation where it is demanded by sound
legal principles as well as the interests of justice.” Id.
When state tolling rules contradict federal law or policy, in
certain limited circumstances, federal courts can turn to federal
tolling doctrine. See Lake v. Arnold, 232 F.3d 360, 370 (3d Cir.
2000). Under federal law, equitable tolling is appropriate in three
general scenarios:
(1) where a defendant actively misleads a plaintiff with
respect to her cause of action; (2) where the plaintiff
has been prevented from asserting her claim as a result
of other extraordinary circumstances; or (3) where the
plaintiff asserts her claims in a timely manner but has
done so in the wrong forum.

Lake, 232 F.3d at 370 n.9 (citation omitted).
In this case, Plaintiff has not been misled by a defendant as
to the cause of action or filed in the wrong forum, nor has Plaintiff
been prevented from filing the instant complaint. Rather, Plaintiff
was not aware of the option of filing the complaint, and/or waited
based on the directive by Internal Affairs that the Prosecutor’s
Office would be contacting him.
Unfortunately for Plaintiff, “[f]ederal courts have typically
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extended equitable [tolling] relief only sparingly.” Irwin v. Dep’t
of Veterans Affairs, 498 U.S. 89, 96 (1990). “Procedural requirements
... for gaining access to the federal courts are not to be disregarded
by courts out of a vague sympathy for particular litigants.” Hedges
v. United States, 404 F.3d 744, 753 (3d Cir. 2005) (citation omitted).
Indeed, “in the long run, experience teaches that strict adherence
to the procedural requirements specified by the legislature is the
best guarantee of evenhanded administration of the law.” Id.
“[I]gnorance, inexperience and pro se status ... do not toll the
statute of limitations.” Huertas v. City of Philadelphia, 188 F.
App’x 136, 138 (3d Cir. 2006) (citations omitted), cert. denied, 549
U.S. 1279 (2007). Here, the Court cannot see any legitimate basis
to grant the extraordinary relief of equitably tolling Plaintiff's
time limit for filing his § 1983 claim. Accordingly, Plaintiff's
complaint must be dismissed.
CONCLUSION
For the reasons stated above, Plaintiff’s complaint must be
dismissed for failure to state a claim upon which relief may be
granted.

An appropriate Order follows.

s/ Jerome B. Simandle
JEROME B. SIMANDLE, Chief Judge
United States District Court
Dated:

July 14, 2014
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