SMITH-HARPER v. THURLOW et al

Filing 4

OPINION. Signed by Judge Robert B. Kugler on 5/22/2015. (drw)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
KENNETH SMITH-HARPER,
:
:
Plaintiff,
:
Civ. No. 15-1254 (RBK) (JS)
:
v.
:
OPINION
:
OFFICER KEVIN THURLOW, et al.,
:
:
Defendants.
:
_________________________________________ :
ROBERT B. KUGLER, U.S.D.J.
I.

INTRODUCTION

The plaintiff is a state prisoner currently incarcerated at the South Woods State Prison in
Bridgeton, New Jersey. He is proceeding pro se with a civil rights complaint filed pursuant to 42
U.S.C. § 1983 that was filed in February, 2015. His application to proceed in forma pauperis
was previously granted.
At this time, the Court must review the complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B)
and 1915A 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 suit. For the reasons set forth below, the complaint will be
dismissed because, on its face, it is barred by the applicable statute of limitations. This dismissal
will be without prejudice to the filing of an amended complaint (if plaintiff elects to file one) that
sets forth an adequate basis for the court to conclude that the statute of limitations was tolled or
otherwise does not bar these claims.

II.

BACKGROUND

The allegations of the complaint will be construed as true for purposes of this screening.
Plaintiff names the following as defendants in this case: (1) Officer Kevin Thurlow – Senior
Parole Officer, Atlantic County Parole Office District 8; (2) Sergeant Eric Barton – Supervisor of
Parole, Atlantic County Parole Office District 8; and (3) New Jersey State Parole District 8
Office Board Members.
Plaintiff’s allegations relate to an incident that occurred at his regularly scheduled parole
meeting on August 3, 2011. The night before that meeting, plaintiff was arrested for
inappropriately touching a female and charged with fourth degree criminal sexual contact. He
reported this arrest to his parole officer the next day at the meeting. Thurlow then came to the
meeting and instructed plaintiff to come to his office. Upon arriving at Thurlow’s office,
plaintiff became afraid because there were other officers, including Barton standing there.
Plaintiff alleges that he was then thrown into a chair.
Thereafter, plaintiff claims that Thurlow hit him in his left jaw and subsequently hit him
with a combination of punches to his face. Plaintiff states that he was then picked up and thrown
against the wall by one of the other officers. This officer rammed his forearm into plaintiff’s
neck and a female officer rammed plaintiff’s head into the wall. Plaintiff also received blows to
his ribs and stomach as his arms were pulled backwards and handcuffs placed on him.
Plaintiff alleges that his federal constitutional rights as well as his state law rights were
violated by these actions.

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III.

STANDARD OF REVIEW

A. Standard for Sua Sponte Dismissal
Per the Prison Litigation Reform Act, Pub. L. 104-134, §§ 801-810, 110 Stat. 1321-66 to
1321-77 (Apr. 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 42 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.
“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)
(per curiam) (citing Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000)); Mitchell v. Beard,
492 F. App’x 230, 232 (3d Cir. 2012) (per curiam) (discussing 42 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)). That standard is set forth in Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007), as explicated by the United States Court of Appeals for
the Third Circuit.
To survive the court’s screening for failure to state a claim, the complaint must allege
“sufficient factual matter” to show that the claim is facially plausible. See Fowler v. UPMC
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.” Fair Wind Sailing, Inc. v. Dempster, 764

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F.3d 303, 308 n.3 (3d Cir. 2014) (quoting Iqbal, 556 U.S. at 678). “[A] pleading that offers
‘labels or conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not
do.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
Pro se pleadings, as always, will be liberally construed. Nevertheless, “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).
B. 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 or the
District of Columbia, 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 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, except that in any action brought against a
judicial officer for an act or omission taken in such officer’s
judicial capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was
unavailable.
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 Harvey v.
Plains Twp. Police Dep’t, 635 F.3d 606, 609 (3d Cir. 2011) (citations omitted); see also West v.
Atkins, 487 U.S. 42, 48 (1988).

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IV.

DISCUSSION

A. Statute of Limitations
Plaintiff’s complaint arises from his altercations with the defendants at his parole meeting
on August 3, 2011. Plaintiff did not file his complaint until February, 2015. Section 1983
claims are subject to New Jersey’s two-year statute of limitations. See Patyrak v. Apgar, 511 F.
App’x 193, 195 (3d Cir. 2013) (per curiam) (citing Dique v. N.J. State Police, 603 F.3d 181, 185
(3d Cir. 2010)). The date when a cause of action under § 1983 accrues is determined by federal
law. See Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009) (citing Genty v. Resolution Trust.
Corp., 937 F.2d 899, 919 (3d Cir. 1991)). “Under federal law, a cause of action accrues, and the
statute of limitations begins to run when the plaintiff knew or should have known of the injury
upon which its action is based.” Id. (internal quotation marks and citations omitted). “As a
general matter, a cause of action accrues at the time of the last event necessary to complete the
tort, usually at the time the plaintiff suffers an injury.” Id. (citing United States v. Kubrick, 444
U.S. 111, 120 (1979)).
The acts giving rise to plaintiff’s claims occurred on August 3, 2011. See Ostuni v. Wa
Wa’s Mart, 532 F. App’x 110, 112 (3d Cir. 2013) (per curiam) (excessive force claims typically
accrue on the date of the assault because the plaintiff would have reason to know of the injury at
that point) (citing Montgomery v. De Simone, 159 F.3d 120, 126 (3d Cir. 1998)). The two-year
Section 1983 statute of limitations began to run on August 3, 2011, and expired on August 3,
2013. Plaintiff’s complaint was filed in February, 2015, or approximately 1.5 years after the
Section 1983 statute of limitations expired.
Plaintiff’s state law claims are also governed by a two-year statute of limitations. See
Brown v. City of Newark, No. 09-3752, 2010 WL 1704748, at *4 (D.N.J. Apr. 26, 2010) (stating

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that although New Jersey Civil Rights Act does not contain an express statute of limitations,
language of New Jersey’s generally-applicable personal injury statute combined with Act’s
similar purpose and design to Section 1983 convinces Court that two-year statute of limitations
applies) (citing Gibson v. Superintendent of N.J. Dep’t of Law & Pub. Safety, No. 02-5470, 2007
WL 1038920, at *3 (D.N.J. Mar. 29, 2007)). Accordingly, plaintiff’s state law claims also are
untimely.
With respect to whether the statute of limitations should be tolled, “‘[s]tate law, unless
inconsistent with federal law, also governs the concomitant issue of whether a limitations period
should be tolled.’” McPherson v. United States, 392 F. App’x 938, 944 (3d Cir. 2010) (quoting
Dique, 603 F.3d at 185). New Jersey sets forth certain bases for “statutory tolling.” See, e.g., N.J.
STAT. ANN. § 2A:14-21 (detailing tolling because of minority or insanity); N.J. STAT. ANN. §
2A:14-22 (detailing tolling because of non-residency of persons liable). Nevertheless, the
complaint as pled does not allege any basis for statutory tolling.
Additionally, New Jersey “permits equitable tolling where ‘the complainant has been
induced or tricked by his adversary’s misconduct into allowing the 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 pleading or in the wrong
forum.” Cason v. Arie Street Police Dep’t, No. 10-0497, 2010 WL 2674399, at *5 n.4 (D.N.J.
June 29, 2010) (citing Freeman v. State, 347 N.J. Super. 11, 31 (N.J. Sup. Ct. App. Div. 2002)).
Plaintiff states in his complaint that it took him this long to file this action because he was just
informed by another inmate that he had the right to bring a civil rights complaint. This is
insufficient for this Court to warrant equitably tolling the statute of limitations.

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It is apparent from the face of the complaint that plaintiff’s claims are barred by the
statute of limitations and must therefore be dismissed. See Ostuni, 532 F. App’x 111-12
(“Although the running of the statute of limitations is ordinarily an affirmative defense, where
the defense is obvious from the face of the complaint and no development of the record is
necessary, a court may dismiss a time-barred complaint sua sponte under 28 U.S.C. §
1915(e)(2)(B)(ii) for failure to state a claim.”) (citing Fogle v. Peirson, 435 F.3d 1252, 1258
(10th Cir. 2006)); Hunterson v. Disabato, 244 F. App’x 455, 457 (3d Cir. 2007) (per curiam) (“A
district court may sua sponte dismiss a claim as time-barred under 28 U.S.C. § 1915A(b)(1)
where it is apparent from the complaint that the applicable limitations period has run.”). This
dismissal will be without prejudice to the filing of an amended complaint (if plaintiff elects to do
so) within thirty days, in which plaintiff may assert any facts that may demonstrate a basis for
tolling the applicable statute of limitations.
B. Request for the Appointment of Counsel
Plaintiff has requested the appointment of counsel. Indigent persons raising civil rights
claims have no absolute right to counsel. See Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir.
1997). As a threshold matter, there must be some merit in fact or law to the claims the plaintiff
is attempting to assert. See Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993). In determining
whether to appoint counsel, a court considers the following: (1) the plaintiff’s ability to present
his or her own case; (2) the complexity of the legal issues; (3) the degree to which factual
investigation will be necessary and the ability of the plaintiff to pursue such investigation; (4) the
amount a case is likely to turn on credibility determinations; (5) whether the case will require the
testimony of expert witnesses; and (6) whether the plaintiff can attain and afford counsel on his
own behalf. See id. at 155-56, 157 n.5; see also Cuevas v. United States, 422 F. App’x 142, 144-

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45 (3d Cir. 2011) (per curiam) (reiterating the Tabron factors). The power to appoint counsel
lies solely with the discretion of this Court. See Parham, 126 F.3d at 457.
In this case, plaintiff’s request for the appointment of counsel will be denied without
prejudice. As explained above, plaintiff’s claims are barred by the statute of limitations such that
he has failed to state a claim upon which relief may be granted. Thus, it follows that his request
for the appointment of counsel will be denied at this time as well.
V.

CONCLUSION

For the foregoing reasons, the complaint will be dismissed without prejudice for failure to
state a claim upon which relief may be granted because it is barred on its face by the statute of
limitations. An appropriate order will be entered.

DATED: May 22, 2015
s/Robert B. Kugler__________
ROBERT B. KUGLER
United States District Judge

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