VASQUEZ v. BATISTE et al

Filing 22

OPINION filed. Signed by Judge Robert B. Kugler on 10/29/2015. (drw)n.m.

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
EDUARDO VASQUEZ,
:
:
Plaintiff,
:
Civ. No. 14-4366 (RBK) (JS)
:
v.
:
:
OPINION
BATISTE, et al.,
:
:
Defendants.
:
_________________________________________ :
ROBERT B. KUGLER, U.S.D.J.
I.

INTRODUCTION

Plaintiff is a federal prisoner currently incarcerated at F.M.C. Butner in Butner, North
Carolina. He is proceeding pro se with a civil rights complaint filed pursuant to Bivens v. Six
Unkonwn Named Agents of Fed. Bureau of Narcotics, 430 U.S. 388 (1971). Plaintiff’s complaint
was dismissed without prejudice as time-barred on July 28, 2015. However, plaintiff was given
thirty days in which to move to reopen this case if he attached a proposed amended complaint
that addressed the original complaint’s dismissal on statute of limitations grounds. On September
9, 2015, this Court denied plaintiff’s motion to reopen. Subsequently, plaintiff has filed a motion
to vacate the September 9, 2015 Opinion and Order. (See Dkt. No. 21.) The Clerk will be ordered
to reopen this case so that this Court can rule on plaintiff’s most recent motion. For the following
reasons, plaintiff’s motion to vacate will be denied.
II.

BACKGROUND

This Court laid out the factual allegations of plaintiff’s original complaint in a prior
Opinion; specifically:

Plaintiff names four defendants in the complaint; specifically: (1)
Counselor Batiste; (2) Case Manager Adamiec; (3) Correctional
Officer Sweeney; and (4) an unknown correctional officer.
Plaintiff alleges that he arrived at F.C.I. Fort Dix in April 2009. He
requested medical treatment at that time due to at least twenty
enlarged lymph nodes that had been discovered at plaintiff's
previous place of incarceration. Subsequently, plaintiff requested
the assistance of a Congressman to get the medical treatment that
he needed after plaintiff was told that there was nothing wrong
with him at F.C.I. Fort Dix. A biopsy ultimately revealed that
plaintiff had stage four lymphoma. Plaintiff subsequently began to
receive chemotherapy treatment.
On March 24, 2011, a few days after plaintiff received his
chemotherapy treatment, the four defendants entered plaintiff's cell
to search for a cell phone. Batiste then grabbed plaintiff's arm and
forcefully attempted to raise it. Plaintiff told Batiste that he could
not raise his arm because his lymph nodes were swollen due to his
cancer. Batiste ignored plaintiff's pleas and continued to raise his
arms despite plaintiff's excruciating pain. Subsequently, Batiste
then pushed plaintiff to the floor which caused plaintiff to fall on
his back on the cell floor. Batiste then continued to search plaintiff
despite plaintiff's cries in pain. Batiste forcefully widened
plaintiff's legs which caused plaintiff further pain. Finally, Batiste
put a wheelchair next to plaintiff and ordered someone to take him
to the medical department.
Plaintiff argues that the cell search was pretextual and conducted in
retaliation for plaintiff reporting the denial of his medical treatment
to the Congressman. He asserts that his First Amendment right to
be free from retaliation was violated and that Batiste violated his
Eighth Amendment rights to be free from cruel and unusual
punishment. He seeks monetary damages from the defendants as
relief.
(Dkt. No. 14 at p. 2-3.)
Plaintiff’s original complaint was found to be barred by the applicable two-year statute of
limitations. This Court determined that plaintiff’s statute of limitations was tolled until June 19,

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2012, when he exhausted his administrative remedies. Plaintiff filed his complaint on June 30,
2014, or a several days after the two-year statute of limitations had expired.1
On August 24, 2015, this Court received plaintiff’s response to the dismissal of his
original complaint. Plaintiff requested that this Court toll his statute of limitations from June 20,
2014 until June 26, 2014 because he was having problems obtaining a copy of his prisoner
inmate trust account so that he could file his application to proceed in forma pauperis.
Ultimately, on September 9, 2015, this Court determined that plaintiff was not entitled to
equitable tolling during this period. This Court noted that plaintiff had not shown that he had
been prevented from asserting his rights in some extraordinary way or that he had exercised due
diligence in pursuing and preserving his claims. This Court noted that plaintiff could have filed
his complaint prior to obtaining his trust fund account statement. Indeed, this is in fact what
plaintiff ultimately did when he sent his complaint to this Court on June 30, 2014.
In a document dated October 7, 2015, plaintiff filed his motion to vacate or amend the
September 9, 2015 Opinion and Order. This Court construes this motion by plaintiff as a motion
for reconsideration under Federal Rule of Civil Procedure 59(e) as it is deemed filed within
twenty-eight days of the Court’s September 9, 2015 Opinion and Order pursuant to the prisoner
mailbox rule. See Houston v. Lack, 487 U.S. 266, 270-71 (prisoner mailbox rule provides that
document is deemed filed on date it was delivered to prison officials for mailing).
Plaintiff makes three points in his motion to vacate the September 9, 2015 Opinion and
Order. First, plaintiff states that while he waited until almost the last minute to begin the process
of obtaining his prison account statement, he was undergoing chemotherapy treatment for the
1

As this Court noted in a prior Opinion, June 30, 2014 is deemed the date that plaintiff filed his
complaint under the prisoner “mailbox rule” because that is the date plaintiff dated his cover
page that accompanied his complaint. (See Dkt. No. 14 at p. 5-6 n.2.) Accordingly, plaintiff’s
complaint could not be deemed filed prior to that date.
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eight months leading up to filing his complaint. Second, plaintiff alleges bad faith on the part of
prison officials who purportedly lured him into believing that his prisoner account statement
would be provided to him. Finally, plaintiff alleges that he had never filed a civil rights
complaint before and was relying on local rules that would have rejected his complaint for
failing to include the six-month prisoner account statement with his complaint.
III.

DISCUSSION

Motions for reconsideration are filed pursuant to Federal Rule of Civil Procedure 59(e)
and are governed by Local Civil Rule 7.1(i) which allows a party to seek reconsideration by the
Court in matters in which the party believes the judge has “overlooked.” See Carney v.
Pennsauken Twp. Police Dep’t, No. 11-7366, 2013 WL 4501454, at *1 (D.N.J. Aug. 21, 2013)
(citations omitted). “The standard for reargument is high and reconsideration is to be granted
only sparingly.” Yarrell v. Bartkowski, No. 10-5337, 2012 WL 1600316, at *3 (D.N.J. May 7,
2012) (citing United States v. Jones, 158 F.R.D. 309, 314 (D.N.J. 1994)). To be successful on a
motion for reconsideration, a petitioner has the burden to demonstrate: “(1) an intervening
change in the controlling law; (2) the availability of new evidence that was not available when
the court [issued its order]; or (3) the need to correct a clear error of law or fact or to prevent
manifest injustice.” Max’s Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677
(3d Cir. 1999) (citation omitted); see also Berry v. Jacobs IMC, LLC, 99 F. App’x 405, 410 (3d
Cir. 2004).
Plaintiff does not allege an intervening change in controlling law nor the availability of
new evidence that was not available when this Court dismissed the complaint. Thus, it appears as
if plaintiff is seeking to have this Court reconsider the dismissal of the complaint based on the
need to correct a clear error of law or fact or to prevent manifest injustice.

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As this Court has previously noted, “[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 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).
As noted in supra Part II, plaintiff first argues that this Court should reconsider its finding
that the complaint was untimely because he was undergoing chemotherapy treatments for the
eight months prior to filing his complaint. Assuming arguendo that a plaintiff’s physical illness
can warrant equitable tolling, such tolling would only be appropriate if the physical illness
actually prevented him from complying with the applicable statute of limitations. See, e.g., Eaton
v. Phelps, No. 07-0281, 2008 WL 2942144, at *4 (D. Del. July 30, 2008) (noting equitable
tolling only appropriate if physical illness actually prevented petitioner from complying with
limitations period) (citing Millimaci v. Brooks, No. 06-0135, 2006 WL 3814615, at *4 (W.D. Pa.
Dec. 27, 2006); see also Boos v. Runyon, 201 F.3d 178, 185 (2d Cir. 2000) (noting that mental
and physical illnesses require case-specific approach to determine whether equitable tolling
applies, but that “without a particularized description of how her condition adversely affected her
capacity to function generally or in relationship to the pursuit of her rights, [it] is manifestly
insufficient to justify any further inquiry into tolling.”). In this case, plaintiff fails to show how
his illness prevented him from complying with the two-year statute of limitations. Indeed, during

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the limitations period, plaintiff’s actions indicate that he was actively attempting to pursue his
rights as illustrated by his attempts to obtain his six-month account statement. Thus, while the
Court is sympathetic to the fact that plaintiff had to undergo chemotherapy treatments, such an
allegation is insufficient to show that he was in some “extraordinary way” prevented from
pursuing his rights.
Plaintiff next argues that he was misled by prison officials with respect to when he would
receive his prisoner account statement so that he could file a complete in forma pauperis
application. This argument is also insufficient to warrant a finding that equitable tolling should
apply. See Lyons v. Emerick, 187 F. App’x 219, 222 (3d Cir. 2006) (per curiam) (“The fact that
Lyons missed his deadline for filing suit while he was waiting on prison officials to respond to
his request for his account statement does not justify the tolling of the statute of limitations in
this case. Despite the fact that Lyons had two years to file his complaint, he waited until the last
minute when his schedule was derailed by a delay in the paperwork necessary to file his
complaint in forma pauperis. Lyons did not exercise reasonable diligence in pursuing his claims
and, thus, is not eligible for equitable tolling.”) (citing Pace v. DiGuglielmo, 544 U.S. 408, 419
(2005)); Darby v. Dallas, No. 06-1928, 2007 WL 2428582, at *4 (N.D. Tex. Aug. 24, 2007)
(“Plaintiff’s excuse that he could not file his § 1983 complaint timely because he was waiting for
a notarized copy of his prison account statement is not a ‘rare and exceptional circumstance’
sufficient to invoke equitable tolling.”).
This Court is aware that in another non-precedential decision, a different panel of the
Third Circuit found that it was not bound by the decision in Lyons. See DaSilva v. Sheriff’s
Dep’t, 413 F. App’x 498, 502 (3d Cir. 2011) (per curiam). However, for the following reasons,
this Court finds DaSilva distinguishable. In DaSilva, the District Court dismissed the complaint

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on screening as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i). See DaSilva, 413 F. App’x at 499500. Subsequently, DaSilva filed a Rule 60(b) motion arguing that he had not been given an
opportunity to amend his complaint. See id. at 500. The District Court denied the motion and
held that any amendment would be futile because the complaint was barred by the statute of
limitations. See id. In DaSilva, the District Court noted that the plaintiff had signed the complaint
and in forma pauperis application within the presumed bounds of the statute of limitations, but,
citing Lyons, concluded that the several week delay by the prison official who certified DaSilva’s
prison account did not warrant equitable tolling. See id. In vacating and remanding the matter to
the District Court, the Third Circuit determined that it was unclear from the record when the
plaintiff submitted his complaint to the clerk for filing as the complaint was dated within the
applicable statute of limitations period. See id. at 501-02. Additionally, the panel in Dasilva
noted that it was not bound by Lyons and that there may have been other equitable tolling
arguments that the plaintiff had no opportunity to present. See id.
Unlike Dasilva, it is clear that the plaintiff in this case did not submit his complaint to the
clerk for filing within the applicable statute of limitations. Plaintiff’s cover letter to the clerk that
accompanied his complaint is dated June 30, 2014, and his complaint is dated June 27, 2014.
Both dates are after the statute of limitations expired. Furthermore, and unlike DaSilva, this
Court provided the plaintiff with an opportunity to present his equitable tolling arguments after
the complaint was initially dismissed.
Finally, this Court construes plaintiff’s argument that he had never filed a civil rights
complaint and was relying on the local rules as an argument that his lack of legal knowledge is
sufficient for this Court to find that equitable tolling should apply. However, plaintiff’s lack of
legal knowledge is insufficient to warrant equitable tolling in this case. See Bieregu v. Ashcroft,

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259 F. Supp. 2d 342 (D.N.J. 2003) (stating that lack of legal knowledge does not constitute
“extraordinary circumstance” required for equitable tolling) (citations omitted); see also Ross v.
Varano, 712 F.3d 784, 799-800 (3d Cir. 2013) (noting in habeas context that fact that petitioner
is proceeding pro se and his lack of legal knowledge or training does not along justify equitable
tolling).
Therefore, plaintiff has failed to show that his request for reconsideration should be
granted since he has not shown that this Court should reconsider its September 9, 2015 Opinion
and Order because he is entitled to equitable tolling.
IV.

CONCLUSION

For the foregoing reasons, plaintiff’s motion to vacate or amend the September 9, 2015
Order is denied. An appropriate Order will be entered.

DATED: October 29, 2015
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

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