BOVIO v. O-LANO et al
Filing
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OPINION. Signed by Judge Renee Marie Bumb on 3/22/2016. (jbk, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
DOMINIC BOVIO,
Plaintiff,
v.
OFFICER G.T.P.D.
EDWARD O-LANO, et al.,
Defendants.
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CIV. ACTION NO. 16-1291 (RMB)
OPINION
RENÉE MARIE BUMB, U.S. District Judge
This matter comes before the Court upon Plaintiff’s filing of
a prisoner civil rights complaint. (Compl., ECF No. 1.) Plaintiff
is a prisoner confined in the Federal Correctional Institution in
Northern State Prison, in Newark, New Jersey. (Id., ECF No. 1 at 2.)
He brings this civil action seeking monetary damages arising out of
his January 2011 arrest, his intake in Camden County Jail, and his
subsequent suicide attempt. (Id., ¶6.) Plaintiff acknowledges the
untimeliness of his complaint and relies on the continuing violations
doctrine. (Id., ECF No. 1 at 13.)
Plaintiff seeks to proceed in forma pauperis pursuant to 28
U.S.C. §§ 1915(a) and 1915(A). The Court has reviewed Plaintiff’s
IFP application (ECF No. 1-3), and it establishes Plaintiff’s
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inability to pay the filing fee. Plaintiff’s IFP application will
be granted; and prison officials will begin to deduct installment
payments for the filing fee from Plaintiff’s trust account, as
required by 28 U.S.C. § 1915(b)(1).
The Court now reviews Plaintiff’s Complaint, pursuant to 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.
II.
DISCUSSION
A.
The Complaint
Plaintiff sued his arresting officers, an “outside psychiatric
screener,” and the Camden County Corrections Officers and medical
staff whom he encountered upon his admission and processing into the
jail in January 2011. (Compl., ECF No. 1, ¶6.) Plaintiff alleged
Defendants were deliberately indifferent to his obvious need for
psychiatric hospitalization, and he was seriously injured when he
attempted suicide by jumping off the second tier at Camden County
Correctional
Facility.
(Id.)
He
also
alleged
negligent in treating his mental health. (Id.)
B.
Standard of Review
2
Defendants
were
A pleading must contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). “To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 570 (2007)). “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.”
Id. (quoting Twombly, 550 U.S. at 556.)
“[A] court must accept as true all of the allegations contained
in a complaint.” Id. A court need not accept legal conclusions as
true. Id. Legal conclusions, together with threadbare recitals of
the elements of a cause of action, do not suffice to state a claim.
Id. Thus, “a court considering a motion to dismiss can choose to begin
by identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.” Id. at
679. “While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.” Id. If
a complaint can be remedied by an amendment, a district court may
not dismiss the complaint with prejudice, but must permit the
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amendment. Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d
Cir. 2002).
C.
Statute of Limitations on § 1983 Claims
Plaintiff alleged violation of the Eighth and Fourteenth
Amendments by police officers and county correctional facility
employees. “[A] district court may sua sponte dismiss a claim as
time-barred under 28 U.S.C. § 1915(A)(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). Where
the cause of action occurred in New Jersey, there is a two-year
statute of limitations for personal injury claims brought under 42
U.S.C. § 1983. O’Connor v. City of Newark, 440 F.3d 125, 126-27 (3d
Cir. 2006). Medical malpractice claims in New Jersey have a two-year
statute of limitations. N.J.S.A. 2A:14-2.
Federal law governs when a § 1983 claim accrues for statute of
limitations purposes. Dique v. New Jersey State Police, 603 F.3d 181,
185 (3d Cir. 2010). The § 1983 claim accrues “when the wrongful act
of omission results in damages.” Id. at 185-86 (quoting Wallace v.
Kato, 549 U.S. 384, 391 (2007)). State law, however, governs whether
a limitations period should be tolled. Id. at 185 (citing Wilson v.
Garcia, 471 U.S. 261, 269 (1985) superseded by statute on other
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grounds, 28 U.S.C. § 1658(a); Ammlung v. City of Chester, 494 F.2d
811, 815 (3d Cir. 1974.)
The
continuing
violations
doctrine
tolls
the
statute
of
limitations “̔when a defendant’s conduct is part of a continuing
practice,’ if the ‘last act evidencing the continuing practice falls
within the limitations period’ the otherwise time-barred earlier
acts may be considered. Cowell v. Palmer Tp., 263 F.3d 286, 292 (3d
Cir. 2001) (quoting Brenner v. Local 514, United Bhd. of Carpenters
and Joiners of Am., 927 F.2d 1283, 1295 (3d Cir. 1991.) The doctrine
applies when a plaintiff establishes that the defendant’s conduct
is “̔more than the occurrence of isolated or sporadic acts.’” Id.
at 292 (quoting West v. Philadelphia Elec. Co., 45 F.3d 744, 755 (3d
Cir. 1995) superseded in part by statute, Lilly Ledbetter Fair Pay
Act, Pub.L. No. 111-2, 123 Stat. 5 (2009)).
In determining whether the plaintiff has made the required
showing for application of the continuing violations doctrine,
courts consider at least three factors:
(1) subject matter——whether the violations
constitute the same type of [harm], tending to
connect them in a continuing violation; (2)
frequency——whether the acts are recurring or
more in the nature of isolated incidents; and
(3) degree of permanence——whether the act had
a degree of permanence which should trigger the
plaintiff’s awareness of and duty to assert
his/her rights and whether the consequences of
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the act would continue even in the absence of
a continuing intent to [harm].
Cowell, 263 F.3d at 292. The degree of permanence is the most
important factor. Id. (citing Berry v. Bd. of Supervisors of
Louisiana State Univ., 715 F.2d 971, 981 (5th Cir. 1983)).
Plaintiff filed this action in March 2016. Therefore, his claims
that Defendants were deliberately indifferent to his need for mental
health treatment in January 2011 are untimely unless the statute of
limitations is equitably tolled. Although Plaintiff raised the
continuing violations doctrine, he did not allege any specific
continuing acts on the part of any defendant. Instead, he asserted:
I am still experiencing medical difficulty and
suffering as to the continence [sic] of
violations doctrine. As well as been limited if
at all to file this claim due to interference
of my due process rights from several
psychiatric commitments, as well as my
incarceration. As well as being misinformed of
my rights and/or suffering severely from
depression, suicidal ideations, and addiction.
(Compl., ECF No. 1 at 12.)
Plaintiff
Defendants’
does
conduct
not
is
establish
more
than
in
the
isolated
Complaint
or
that
sporadic
the
acts.
Furthermore, Plaintiff does not allege sufficient facts for the Court
to determine whether he might be entitled to equitable tolling of
the statute of limitations. See Brown v. Buck, 614 F. App’x 590, 592
(3d Cir. 2015) (“Equitable tolling is extraordinary relief, and is
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appropriate only when: (1) a defendant actively misleads a plaintiff
regarding his or her cause of action; (2) a plaintiff has been
prevented from asserting a claim as a result of other extraordinary
circumstances; or (3) a plaintiff has timely asserted his or her claim
in the wrong forum.”) Therefore, the Court will dismiss the Complaint
without prejudice as barred by the statute of limitations. Plaintiff
may seek to reopen this matter by filing an Amended Complaint,
explaining in further detail how Plaintiff was prevented from filing
within the two-year statute of limitations.
III. CONCLUSION
For the reasons discussed above, in the accompanying Order filed
herewith, the Court will dismiss the Complaint without prejudice.
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
DATED: MARCH 22, 2016
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