GALLISHAW v. NO DEFENDANT LISTED
OPINION. Signed by Chief Judge Jerome B. Simandle on 2/17/2017. (TH, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
FRANKLIN M GALLISHAW,
HONORABLE JEROME B. SIMANDLE
No. 16-7979 (JBS-AMD)
NO DEFENDANT LISTED,
Franklin M. Gallishaw, Plaintiff Pro Se
2011 Ferry Avenue, Apt B19
Camden, New Jersey 08104
SIMANDLE, Chief District Judge:
Plaintiff Franklin M. Gallishaw seeks to bring a civil
rights complaint pursuant to the 42 U.S.C. § 1983. Plaintiff did
not list a defendant in his complaint. Complaint, Docket Entry
1. Based on Plaintiff’s affidavit of indigency, the Court will
grant his application to proceed in forma pauperis.
At this time, the Court must review the complaint, pursuant
to 28 U.S.C. § 1915(e)(2) 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 with prejudice for failure to state a claim. 28 U.S.C.
Plaintiff alleges that between 1975 and 2002, he was
detained in the Camden County Correctional Facility (“CCCF”).
Complaint § III. The factual portion of plaintiff’s complaint
states: “Officer beat me up and had me sleeping on the floor.”
III. STANDARD OF REVIEW
Section 1915(e)(2) requires a court to review complaints
prior to service in cases in which a plaintiff is proceeding in
forma pauperis. 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)
because Plaintiff is proceeding in forma pauperis.
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. Fowler v. UPMS
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 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.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
Plaintiff seeks monetary damages for allegedly
unconstitutional conditions of confinement in the CCCF that he
experienced between 1975 and 2002. Plaintiff’s complaint is
barred by the statute of limitations, which is governed by New
Jersey's two-year limitations period for personal injury.1 See
Wilson v. Garcia, 471 U.S. 261, 276 (1985); Dique v. N.J. State
Police, 603 F.3d 181, 185 (3d Cir. 2010). The accrual date of a
§ 1983 action is determined by federal law, however. Wallace v.
Kato, 549 U.S. 384, 388 (2007); Montanez v. Sec'y Pa. Dep't of
Corr., 773 F.3d 472, 480 (3d Cir. 2014).
“Under federal law, a cause of action accrues when the
plaintiff knew or should have known of the injury upon which the
“Although the running of the statute of limitations is
ordinarily an affirmative defense, where that 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.” Ostuni v. Wa Wa's Mart, 532 F. App’x 110, 111–12
(3d Cir. 2013) (per curiam).
action is based.” Montanez, 773 F.3d at 480 (internal quotation
marks omitted). Plaintiff states he was detained between 1975
and 2002. The allegedly unconstitutional conditions of
confinement at CCCF would have been immediately apparent to
Plaintiff at the time of his detention; therefore, the statute
of limitations for Plaintiff’s claims expired in 2004 at the
latest. As there are no grounds for equitable tolling of the
statute of limitations,2 the complaint will be dismissed with
prejudice. Ostuni v. Wa Wa's Mart, 532 F. App’x 110, 112 (3d
Cir. 2013) (per curiam) (affirming dismissal with prejudice due
to expiration of statute of limitations).
For the reasons stated above, the complaint is dismissed with
prejudice for failure to state a claim. An appropriate order
February 17, 2017
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
Equitable tolling “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)).
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