BOVIO v. O-LANO et al

Filing 10

OPINION. Signed by Judge Renee Marie Bumb on 9/12/2016. (TH, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
Dominic Bovio,
Plaintiff,
v.
Edward O’Lano, et al.,
Defendants.

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CIV. NO. 16-1291 (RMB)

OPINION

RENÉE MARIE BUMB, U.S. District Judge
This matter comes before the Court upon Plaintiff’s submission
of an Amended Complaint (ECF No. 8) in response to this Court’s
Opinion and Order (ECF Nos. 2, 3), dismissing without prejudice
Plaintiff’s civil rights complaint as barred by the statute of
limitations. The Court has granted Plaintiff in forma pauperis
status.
I.

SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)(b) and § 1915A
The Court is required to review a prisoner’s civil rights

complaint under 28 U.S.C. § 1915(e)(2)(b) and § 1915A.

The Court

must dismiss any claims that are: (1) frivolous or malicious; (2)
fail to state a claim on which relief may be granted; or (3) seek
monetary relief against a defendant who is immune from such relief.
28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A. “[A] district court
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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.” Hunterson v. Disabato, 244
F. App’x 455, 457 (3d Cir. 2007).
II.

DISCUSSION
A.

The Amended Complaint

Plaintiff alleges that each of the defendants was negligent and
deliberately indifferent to his risk of suicide, and of his need to
be transported to a hospital for treatment rather than taken to Camden
County Jail upon his arrest on January 26, 2011. Plaintiff alleges
he has a long history of mental illness and substance abuse. At the
time of Plaintiff’s arrest on January 26, 2011, he told the arresting
officer, Edward O’Lano, that he needed medical and mental health
treatment, and that he was suicidal and had been so for quite some
time. He had not slept for more than seven days because he was using
cocaine

and

heroin

and

ingesting

alprazolam

and

clonazepam.

Plaintiff advised O’Lano that he had been discharged from Trenton
Psychiatric Hospital earlier that month. Plaintiff also alleged it
should have been apparent to O’Lano by Plaintiff’s appearance and
behavior that he required treatment. O’Lano and the other arresting
officers used excessive force in arresting Plaintiff, which they

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justified by saying Plaintiff resisted arrest. 1 They transported
Plaintiff to Gloucester Township Police Department.
At the Gloucester Township Police Department, O’Lano told his
supervisor, Donald Gansky, about Plaintiff’s behavior. Plaintiff was
searched at the police department, and his hostile reaction should
have created a “mental health concern.” Plaintiff was hysterical,
crying and screaming, and he began spitting and acting aggressively.
He was put in a restraint chair, and a spit mask was placed on his
face.
Jane Doe #1, a representative from an outside mental health
crisis agency was called in to Gloucester Police Department to
evaluate Plaintiff. Jane Doe #1 cleared Plaintiff for incarceration,
telling him he was only afraid of going to jail. She did not look
into his prior mental health history, several prior suicide attempts,
and his most recent hospitalization, as Plaintiff requested.

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It is not clear from the Complaint that Plaintiff intends to bring
an excessive force claim against O’Lano. Even if the Court were to
assume that Plaintiff intended to raise an excessive force claim,
Plaintiff has not alleged sufficient facts to state a claim because
he has not described the force O’Lano used in arresting him. See Rivas
v. City of Passaic, 365 F.3d 181, 198 (an excessive force claim by
a police officer in the context of an arrest arises under the Fourth
Amendment, and the evaluation involves “whether the police officer's
“actions [were] ‘objectively reasonable’ in light of the facts and
circumstances” facing the officer, regardless of the officer's
intent or motivation.” (quoting Graham v. Connor, 490 U.S. 386, 397
(1989)).
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John

Does

#1

and

#2,

from

the

Camden

County

Sheriff’s

Department, arrived to transport Plaintiff to Camden County Jail.
Plaintiff told them he felt sick and suicidal. O’Lano warned them
about Plaintiff’s behavior, but Plaintiff made it clear he would not
be a problem. Plaintiff began banging his head in the transport van.
Plaintiff alleges John Does #1 and #2 were deliberately indifferent
by not taking him to a hospital instead of jail.
Jane Doe #2 was the intake officer at Camden County Jail, and
Jane Doe #3 was the nurse admissions officer. Plaintiff told them
he was suicidal, mentally ill, and had been awake for days. They asked
him if he knew the date, knew where he was, and knew who the president
was. The admissions officer told a nurse, Jane Doe #4, that there
was nothing wrong with him. Plaintiff was admitted to 3 South A, known
as 7-day lockdown.
Days later, Plaintiff saw John Doe #3, a physician who screened
Plaintiff for placement in the population. Plaintiff told John Doe
#3 that he had not eaten in a week, he had suicidal ideations, and
he felt he needed a psychiatric commitment. John Doe #3 asked
Plaintiff

whether

he

told

the

admissions

officers

about

his

condition. When Plaintiff said he had, John Doe #3 replied that they
would have provided mental health treatment upon admission, if they
thought it was needed.

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On the day of Plaintiff’s suicide attempt, he told the
medication nurse, Jane Doe #4, and the housing officer, John Doe #4,
that if he did not get proper medical treatment, his only resort would
be suicide. He was crying and very serious. The same day, Plaintiff
attempted suicide by diving off the second tier and falling 27 to
30 feet below. He suffered a shattered pelvis, ruptured spleen, and
broken elbow and was taken to Cooper Trauma Center. Plaintiff alleges
negligence and constitutional violations against each defendant.
B.

Equitable Tolling

Plaintiff contends his claims under 42 U.S.C. § 1983 and state
tort law should be equitably tolled because he was not mentally
competent to raise his claims sooner. (Am. Compl., ECF No. 8 at 13.)
Upon his suicide attempt in Camden County Jail in January 2011,
Plaintiff was taken to Cooper Trauma Center to be treated for his
injuries. From there, he was admitted to the mental health unit at
JFK Hospital, and transferred to Ancora Psychiatric Hospital in May
2012. From Ancora, he was released to the care of Twin Oaks Behavioral
Health.
Plaintiff made another suicide attempt in June 2013. He was
placed on life support at Our Lady of Lourdes Hospital. Then, he was
admitted to the mental health unit at Virtua Hospital in Mount Holly,
New Jersey. He was later transferred to the psychiatric unit in

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Hampton Hospital. From August 2013 through September 1, 2013,
Plaintiff was admitted to Ancora Psychiatric Hospital. Plaintiff was
released for 90 days, but in December 2013, he was admitted to Trenton
Psychiatric Hospital. Plaintiff was in a psychiatric unit twice since
2014, and he had three surgeries since June 2015. He filed this action
on March 4, 2016.
A § 1983 claim is governed by the applicable state’s statute
of limitations for personal-injury claims, which in New Jersey is
two years. Dique v. New Jersey State Police, 603 F.3d 181, 185 (3d
Cir. 2010)(citing Cito v. Bridgewater Twp. Police Dep’t, 892 F.2d
23, 25 (3d Cir. 1989); N.J. Stat. Ann. § 2A:14-2 West 2004)). State
law, unless inconsistent with federal law, governs whether the
limitations period should be tolled. Id. (citing Wilson v. Garcia,
471 U.S. 261, 269 (1985), superseded by statute on other grounds,
28 U.S.C. § 1658(a); Ammlung v. City of Chester, 494 F.2d 811, 815
(3d Cir. 1974)).
The New Jersey statute of limitations is subject to tolling due
to the insanity of the potential plaintiff. Nicolas v. Ocean Plaza
Condominium Ass’n, Inc., 73 F. App’x 537, 541 (3d Cir. 2003)(quoting
N.J.S.A. 2A:14-21)(“a person who has a mental disability that
prevents the person from understanding his legal rights or commencing
a legal action at the time the cause of action . . . accrues, the

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person may commence the action . . . after

. . . having the mental

capacity to pursue the person's lawful rights.)) To fall within the
statute, “̔a plaintiff need not suffer from a mental illness that
requires commitment or institutionalization ... Nonetheless, the
plaintiff must suffer from ‘such a condition of mental derangement
as actually prevents the sufferer from understanding his legal rights
or instituting legal action.’” Id. at 541 (quoting Todish v. CIGNA
Corp., 206 F.3d 303, 305-306 (3d Cir. 2000) (citations omitted)).
Expert testimony is not required. Id.
Plaintiff has not set forth sufficient facts in support of
equitable tolling. The Court takes judicial notice of the information
regarding Plaintiff’s custody status from the New Jersey Department
of Corrections Offender Search.2 Plaintiff committed an offense on
October 11, 2013 in Gloucester County. This falls within the 90-day
period in which Plaintiff contends he was released from Ancora
Psychiatric Hospital. On September 12, 2014, Plaintiff was sentenced
apparently for the charges upon which he was arrested in 2011. Id.
On the day of sentencing, Plaintiff was admitted to Northern State
Prison. Id. Plaintiff was sentenced for the October 11, 2013 offense
on October 20, 2014.

2

Available at https://www20.state.nj.us/DOC_Inmate/inmatesearch
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It appears that Plaintiff regained the mental capacity to
understand his legal rights and pursue legal action well before he
instituted this action on March 4, 2016. Therefore, the Court will
dismiss this action without prejudice as barred by the statute of
limitations. Plaintiff may reopen this action if he can plead
additional facts showing he did not regain the mental capacity to
understand his legal rights and take legal action before March 4,
2016.
III. CONCLUSION
For the reasons discussed above, in the accompanying Order filed
herewith, the Court will dismiss the Amended Complaint without
prejudice, as barred by the statute of limitations.

Dated: September 12, 2016.
s/RENÉE MARIE BUMB__________
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE

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