LAIL v. FCI FAIRTON
Filing
7
OPINION. Signed by Judge Noel L. Hillman on 12/21/2017. (tf, n.m.)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ERNEST LAIL,
No. 16-cv-6991 (NLH) (AMD)
Plaintiff,
v.
OPINION
FCI FAIRTON,
Defendant.
APPEARANCES:
Ernest Lail, #11572-057
FCI – Fairton
P.O. Box 420
Fairton, NJ 08320
Plaintiff Pro se
HILLMAN, District Judge
Plaintiff Ernest Lail, a prisoner presently incarcerated at
Federal Correctional Institution (“FCI”) Fairton in Fairton, New
Jersey, seeks to bring a civil rights complaint pursuant to
Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388
(1971), against FCI Fairton and various staff members employed
there and at other Bureau of Prisons (“B.O.P.”) facilities.
Plaintiff alleges a variety of grievances in his Complaint,
including theft, physical abuse, mail tampering, and unlawful
detention.
At this time, the Court must review the Complaint, pursuant
to 28 U.S.C. §§ 1915(e)(2) 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 such
relief.
For the reasons set forth below, the Court will dismiss
the Complaint without prejudice for failure to state a claim,
with leave to amend.
28 U.S.C. §§ 1915(e)(2)(b)(ii) and
1915A(b)(1).
BACKGROUND
After filing his initial Complaint on October 11, 2016, ECF
No. 1, Plaintiff thereafter provided additional information
regarding his claims by letter and exhibits, ECF No. 6.
The
Court will construe both documents together as the Complaint for
the purposes of this screening. 1
Plaintiff alleges that in January 2006, B.O.P. staff opened
Plaintiff’s mail and stole from it stock certificates and a
patent for an electrical magnetic generator, from which,
according to Plaintiff, B.O.P. staff continue to profit.
No. 6 at 2.
ECF
In addition, Plaintiff alleges that B.O.P. staff
are utilizing Plaintiff’s credit card, which has a value of one
billion dollars, ECF No. 6 at 9, and that approximately
1
As noted below, the Court will grant Plaintiff leave to amend
his Complaint if he is able to cure the deficiencies noted.
However, Plaintiff is reminded that ordinarily pleadings may not
be supplemented by letter, briefs, or other submissions. Any
proposed amended complaint must contain all of Plaintiff’s
factual allegations and legal claims in one short and plain
statement. Fed.R.Civ.P. 8(a).
2
$965,000.00 has been stolen by B.O.P. employees, ECF No. 1 at 2,
from Plaintiff’s bank account, see ECF No. 6 at 3. 2
Plaintiff also alleges that between September 2008 and
September 2009, BOP staff created and sold for a profit to
various television networks a mini-series starring Plaintiff.
ECF No. 6 at 4–6. 3
In addition, Plaintiff alleges that BOP staff
put his music on CDs in 2011.
ECF No. 6 at 6.
As to Plaintiff’s allegations regarding mistreatment and
abuse, Plaintiff alleges that between 2010 and 2011, he was the
victim of unspecified brutality as well as “high speed camera
and electricity to face and eyes.”
ECF No. 6 at 7.
In
addition, Plaintiff states that “[s]ince January of 2009 FCI
Estill, S.C.[,] Lt. Watson and B.O.P. staff have used
electricity on me and abused me 24 hours of every day for eight
years.” 4
ECF No. 6 at 8.
Plaintiff also states that he received
serious burns from “a taser and high level stun gun [from] date
1/15/2009 until 2012.”
ECF No. 1 at 2.
2
Plaintiff also alleges that in 2006 he failed to receive
$178.00 in commissary account money and $500.00 he should have
received from “being in prison since 1985.” ECF No. 6 at 3.
3
Plaintiff references “sold creative design Watson Enterprises
Stick Dancers with music for 300 million 2015 or 2016 Superbowl
Commercial Contest.” ECF No. 6 at 6. This indecipherable
statement does not appear to be an allegation in support of any
claim.
4
Despite this allegation of continuing abuse at FCI Estill, it
appears that Plaintiff has been incarcerated at FCI Fairton
since April 4, 2013. See ECF No. 6 at 1.
3
Next, Plaintiff alleges that B.O.P. employees interfered
with his incoming and outgoing mail, which prevented him from
accessing the courts in violation of the First Amendment.
ECF No. 1 at 1.
See
Plaintiff provides detailed lists of his
mailing attempts which include each date on which Plaintiff
mailed a letter.
The most recent date on which Plaintiff
attempted to mail a letter to an attorney or to various
government agencies and officials appears to be August 5, 2013.
See ECF No. 6-1, at 19–27 (listing addressees and dates of
attempted mailing).
Finally, as to Plaintiff’s unlawful detention, Plaintiff
alleges that his sentence was to end on August 21, 2016, however
he is still being incarcerated. 5
ECF No. 1 at 1.
Given
Plaintiff’s allegation regarding his detention, the Court
construes his claim to be one challenging the execution of his
sentence.
Such a claim must be brought as a petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2241.
See Coady v.
Vaughn, 251 F.3d 480, 485 (3d Cir. 2001) (noting that federal
prisoners who wish to challenge the execution of their sentence
must proceed under § 2241).
Furthermore, as Plaintiff’s sole
5
The Court takes judicial notice that Plaintiff is separately
challenging his detention, for the same reasons as those raised
in the Complaint, pursuant to a 28 U.S.C. § 2255 motion in the
U.S. District Court for the Western District of Arkansas, Nos.
2:17-cv-2046 (§ 2255 motion) and No. 2:07-cr-20028 (criminal
case), which is his sentencing court.
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requested remedy is monetary damages, this claim would be barred
pursuant to Heck v. Humphrey, 512 U.S. 477, 486–87 (1994), which
bars monetary damage claims unless the allegedly
unconstitutional imprisonment has been, inter alia, reversed on
appeal or called into question by the issuance of a writ of
habeas corpus.
To the extent that Plaintiff wishes to challenge
the execution of his sentence, he must file a separate petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2241.
STANDARD OF REVIEW
Sections 1915(e)(2) and 1915A require a court to review
complaints prior to service in cases in which a plaintiff is
proceeding in forma pauperis and in which a plaintiff is
incarcerated.
The Court must 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)(2)(B)
and 1915A because Plaintiff is proceeding in forma pauperis and
is also incarcerated.
See ECF No. 5 (granting in forma pauperis
application).
To survive sua sponte screening for failure to state a
claim, the complaint must allege “sufficient factual matter” to
show that the claim is facially plausible.
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).
Fowler v. UPMC
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“‘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 F.3d 303, 308 n.3 (3d Cir. 2014)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
“[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 Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007)).
DISCUSSION
The factual allegations contained in the Complaint
demonstrate that Plaintiff’s claims are time barred.
As such,
Plaintiff fails to state any claim upon which relief may be
granted, and the Complaint must be dismissed.
The Court,
however, will grant leave to amend limited to the statute of
limitations issue.
The statute of limitations for a Bivens action is governed
by the pertinent state’s limitations period for personal injury
claims.
Peguero v. Meyer, 520 F. App’x 58, 60 (3d Cir. 2013)
(“A Bivens claim, like a claim pursuant to § 1983, is
characterized as a personal-injury claim and thus is governed by
the applicable state's statute of limitations for personalinjury claims.”).
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Here, the claims are alleged to have occurred in either New
Jersey (FCI Fairton), California (FCI Herlong and FCI
Victorville), or South Carolina (FCI Estill), and between the
time period of 2006 and August 5, 2013.
It is unnecessary to
determine which state’s statute of limitations should apply to
which claims, because all of Plaintiff’s claims appear to be
time barred under either New Jersey and California’s two-year or
South Carolina’s three-year limitations period for personal
injury claims. 6
See N.J. Stat. § 2A:14-2(a); Cal. Code Civ. P.
335.1; S.C. Code Ann. § 15-3-530.
Generally, “plaintiffs who file complaints subject to
dismissal under [§ 1915] should receive leave to amend unless
amendment would be inequitable or futile.”
Grayson v. Mayview
State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).
The Court will
grant leave to amend in order to allow Plaintiff an opportunity
to address the statute of limitations issue, including tolling. 7
6
“Under federal law, a cause of action accrues ‘when the
plaintiff knew or should have known of the injury upon which the
action is based.’” Montanez v. Sec’y Pa. Dep’t of Corrs., 773
F.3d 472, 480 (3d Cir. 2014) (quoting Sameric Corp. v. City of
Phila., 142 F.3d 582, 599 (3d Cir. 1998)). See also Oshiver v.
Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1386 (3d
Cir.1994) (“[a] claim accrues . . . as soon as a potential
claimant either is aware, or should be aware, of the existence
of and source of an injury . . . not upon awareness that this
injury constitutes a legal wrong”). Here, the injuries alleged
to have been incurred by Plaintiff are the sort that would have
been knowable when the alleged wrongful conduct occurred.
7
Equitable tolling “is only appropriate ‘(1) where the defendant
has actively misled the plaintiff respecting the plaintiff's
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CONCLUSION
For the reasons stated above, the Complaint is dismissed
without prejudice for failure to state a claim, with leave to
amend granted.
An appropriate order follows.
Dated: December 21, 2017
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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)).
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