Tavares v. Holder et al
Filing
29
OPINION. Signed by Judge Kevin McNulty on 11/30/2012. (nr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
PEDRO JUAN TAVARES,
Civil Action No.
11—1328
(KM)
Plaintiff,
v.
ERIC HOLDER,
:
OPINION
et al.,
Defendants.
APPEARANCES:
Plaintiff pro se
Pedro Juan Tavares
Franklyn Correctional Facility
Malone, NY
12953—0010
McNULTY,
1.
District Judge
Plaintiff Pedro Juan Tavares seeks to reopen his case
alleging violations of his constitutional rights pursuant
to Bivens v.
388
2.
(1971),
Six Unknown Fed.
and 42 U.S.C.
Narcotics Agents,
403 U.S.
§ 1983.
Plaintiff is currently incarcerated at Franklyn
Correctional Facility in Malone,
1
New York.
1
At the time he submitted his original Complaint for filing in
the U.S. District Court for the Southern District of New York,
on January 18, 2010, Plaintiff was a criminal pre-trial detainee
confined at the George R. Vierno Center on Rikers Island, New
1
3.
Because Mr.
Tavares’s first application for leave to
proceed in forma pauperis was deficient,
this Court denied
the application and administratively terminated the
original Complaint.
This matter was reopened upon
Plaintiff’s submission of a complete application for leave
to proceed in forma pauperis.
4.
Based on his affidavit of indigence and the absence of
three qualifying dismissals within 28 U.S.C.
§ 1915(g),
this Court granted Plaintiff’s application for leave to
proceed in forma pauperis pursuant to 28 U.S.C.
§ 1915(a)
and ordered the Clerk of the Court to file his Amended
Complaint
5.
2
This Court then reviewed Mr. Tavares’s Amended Complaint,
which alleges that federal immigration authorities
subjected him to excessive detention relating to
deportation proceedings pursuant to 8 U.S.C.
§ 1226(c),
and
York.
Because the alleged events giving rise to Plaintiff’s
claims occurred in the District of New Jersey, the matter was
See Tavares v. Holder, Civil No. 10transferred to this Court.
1723 (S.D.N.Y.).
2
The Court considers Mr. Tavares’s previously granted in forma
pauperis status to continue in effect for purposes of this
motion. Accordingly, the new in forma pauperis application Mr.
Tavares filed with this motion to reopen the case and file an
amended complaint will be dismissed as moot. In any event, the
new application suggests that he remains unable to afford filing
fees.
2
that during that detention he suffered unconstitutional
conditions of confinement.
6.
The Amended Complaint names as Defendants U.S. Attorney
General Eric Holder,
Secretary of Homeland Security Janet
Napolitano, Monmouth County Jail Warden Brian Elwood,
Passaic County Jail Warden Theodore J.
Hutter,
and
Jr.
Plaintiff alleges that Attorney General Holder and
Secretary Napolitano violated his Fifth,
Eighth,
and
Fourteenth Amendment due process and equal protection
rights by dragging out “unlawful” deportation proceedings.
He alleges that they also violated his Fifth and Fourteenth
Amendment due process and equal protection rights,
as well
as his Eighth Amendment rights, by subjecting him to
excessive and unlawful detention.
He also alleges that
Holder and Napolitano violated his rights under the Fifth,
Eighth,
and Fourteenth Amendments,
and under 42 U.S.C.
§ 1983, 1985, and l986, by failing to properly supervise
Section 1983 “‘is not itself a source of substantive rights,’
but merely provides ‘a method for vindicating federal rights
Graham v. Connor, 490 U.S. 386, 393-94
elsewhere conferred.’”
(1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n. 3
(1979))
Section 1985(3) provides a damages remedy for conspiracy to
deprive persons of the equal protection of the law.
Section 1986 provides a cause of action against any person who,
“having knowledge that any of the wrongs conspired to be done,
and mentioned in section 1985 of this title, are about to be
3
00
1997e
(prisoner actions brought with respect to prison
conditions)
9.
Upon reviewing his Amended Complaint,
that Mr.
this Court determined
Tavares had failed to state a claim because it was
apparent from the face of the Complaint that Mr.
Tavares’s
civil rights claims were barred by the applicable statute
of limitations.
570 F.2d 1168,
See Bethel v.
(3d Cir.
1174
Jendoco Construction Corp.,
1978)
(holding that court may
dismiss a complaint for failure to state a claim where “the
time alleged in the statement of a claim shows that the
cause of action has not been brought within the statute of
limitations.”)
199,
214—15
example,
(citation omitted));
(2007)
Jones v.
Bock,
549 U.s.
(if the allegations of a complaint,
“for
show that relief is barred by the applicable
the complaint is subject to
statute of limitations,
dismissal for failure to state a claim”)
10.
In its Opinion dismissing the Amended Complaint for failure
to state a claim,
this Court explained the legal parameters
for determining whether Plaintiff’s claims were timely.
See Tavares v.
Sep.
12,
2012),
Civil Case No.
Holder,
ECF No.
First,
24.
11-1328
(KM)
(D.N.J.
the Court explained that
the accrual date of a § 1983 action is determined by
wrongful act be committed
.
.
.
.“
5
federal law. Wallace v.
1091,
1095
(2007)
.
549 U.s.
Kato,
384,
388,
127 5.Ct.
A federal claim accrues as soon as the
injured party “knew or had reason to know of the injury
that constitutes the basis of his action.”
Muroski,
684 F.2d 252,
254
(3d Cir.
(civil rights
1982)
action against state officials); Gordon v.
Appx.
51,
53
(3d Cir.
.
Pugh,
235 Fed.
(applying same rule to Bivens
2007)
action; not precedential)
Sandutch v.
Id.
at 10-11.
Second,
the Court
explained that Plaintiff’s civil rights claims “are best
characterized as personal injury actions and are governed
by the applicable state’s statute of limitations for
personal injury actions” and would therefore be “governed
by New Jersey’s two—year limitations period for personal
injury actions based on a wrongful act,
default.” Id.
at 11.
Finally,
neglect,
or
the Court explained that,
under both New Jersey and Federal law,
the two year statute
of limitations could be “equitably tolled” or suspended
where “the complainant has been induced or tricked by his
adversary’s misconduct into allowing the filing deadline to
pass,” 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.
6
See
Freeman v.
State,
347 N.J.
(citations omitted),
11.
Super.
certjf.
ii,
denied,
Applying these factors to Mr.
31
(App.
172 N.J.
Div.)
178
(2002).
Tavares’s Amended Complaint,
the Court found his claims to be barred by the two year
statute of limitations:
According to the allegations of his
Complaint, Plaintiff’s claims against the
Warden of Monmouth County Jail accrued no
later than the date of his release from that
His claims
facility, October 24, 2003.
nst the Warden of Passaic County Jail
agai
accrued no later than his release date of
His claims against the
February 25, 2006.
ey General and Secretary Napolitano
Attorn
accrued no later than his release from
physical custody on March 16, 2006.
Plaintiff alleges no facts or extraordinary
circumstances that would support statutory
or equitab tolling under either New Jersey
or federal law; these torts, for example,
would naturally have been immediately
apparent to Plaintiff at the time they were
Thus, Plaintiff’s
allegedly committed.
aims, asserted against all defendants on
cl
January 18, 2010, are time—barred and will
be dismissed with prejudice
ECF No.
12.
24 at 13.
Accordingly,
the Court dismissed the Amended Complaint
pursuant to 28 U.S.C.
§ 1(e) (2) (B) (ii)
15 9
for failure to state a claim,
and l915A(b) (1)
but granted Plaintiff leave
to move to reopen the case within 30 days and directed
Plaintiff to attach a proposed amended complaint asserting
7
facts demonstrating the timeliness of his claims.
See Id.
at 14.
13.
Plaintiff timely moved to reopen his case and filed a
14.
28 and 28-1.
See ECF No.
proposed amended complaint.
The Court has reviewed Plaintiff’s motion and proposed
amended complaint and has been mindful to construe them
liberally in favor of the plaintiff.
U.S.
42
15.
519,
520—21
(3d Cir.
Haines v.
(1972); United States v.
Day,
Kerner,
404
969 F.2d 39,
1992)
Plaintiff contends that his claims are timely because the
6
appeal of his deportation order became final on March 23,
2009,
when the United States Supreme Court denied Mr.
Tavares’s petition for rehearing,
and he filed the original
Complaint in this action on January 18,
6
2010.
See ECF No.
Though Plaintiff was detained in New Jersey facilities, his
long and complex immigration proceedings have been conducted in
New York State. In 2003, an Immigration Judge issued an order of
deportation which was affirmed by the Bureau of Immigration
Administration on March 31, 2004, rendering the order
Mr. Tavares was then placed in postadministratively final.
in Passaic County Jail. Plaintiff filed
removal-order detention
a complaint in the District of New Jersey challenging the fact
and duration of his detention and the final order of
The District Court severed and transferred to the
deportation.
U.S. Court of Appeals for the Second Circuit Plaintiff’s
substantive challenge to the final order of removal, but
retained jurisdiction over allegations of civil rights
See Tavares
violations arising from his then pending detention.
v. Meyers, Civil Action No. 04-0302 (WHW) (D.N.J. June 8, 2006),
ECF No. 27.
8
28 at 8.
the Court understands Mr.
In other words,
Tavares
to be arguing that the limitations period was tolled,
that his claims did not accrue,
immigration appeal became final.
or
until the date that his
In the alternative, Mr.
Tavares seems to suggest that he could not instigate this
action until he had exhausted the appeal of his deportation
order because filing such a complaint would have caused
immigration authorities to “re-detain” him.
See ECF No.
28
at 8.
16.
This Court cannot find any legal or factual support for Mr.
and I adhere to my view that the date
Tavares’s position,
from which the statute of limitations runs is the date on
which he “knew or had reason to know of the injury that
constitutes the basis of his action.” Sandutch,
254
(3d Cir.
1982)
684 F.2d at
His civil rights claims arose from the
.
allegedly substandard conditions under which he was
detained until 2006,
and he certainly was aware of those
conditions at the time.
upon the legality,
Such claims are not contingent
or not,
of his final deportation order
(which he challenged in the Court of Appeals). Nor can the
Court find any facts pleaded in Mr.
papers,
Tavares’s motion
Amended Complaint or proposed second amended
complaint that would tend to show that “extraordinary
9
circumstances” prevented him from timely filing the
original Complaint.
17.
Mr. Tavares challenged his detention as unconstitutional in
2005. At that time the Court considered Mr.
Tavares’s
complaint and dismissed it for failure to state a claim.
See Tavares v. Meyers,
(D.N.J.
June 8,
Civil Action No.
ECF No.
2006),
04-0302
27. Mr.
(WHW),
Tavares appealed and
the Court of Appeals for the Third Circuit affirmed the
dismissal.
See Tavares v. Attorney General USA;
Immigration and Naturalization Service,
(3d Cir.
Jan.
4,
2007)
.
Mr.
Case No.
06-3185
Tavares indisputably was not
confronted by extraordinary circumstances that prevented
him from asserting civil rights claims;
assert such claims in 2005,
indeed he did
and they were heard and
decided.
18.
Even if the Court assumed for purposes of argument that Mr.
Tavares’s claims were not time-barred
(which they are),
there exist alternative grounds for dismissal.
extent that Mr.
To the
Tavares is attempting to relitigate claims
that he raised or could have raised in his 2005 action,
they would be precluded under the doctrines of res
judicata.
U.S.
394,
See Federated Dept.
398
(1981)
Stores,
Inc. v.
Moitie,
452
(“A final judgment on the merits of an
10
action precludes the parties or their privies from
relitigating issues that were or could have been raised in
that action.”); Allen v. McMurry,
449 U.S.
90,
97-98
(1980)
(applying res judicata doctrines to Section 1983 action);
United States v. Athlone Indus.,
(3d Cir.
1984)
Inc.,
746 F.2d 977,
983
(“A single cause of action may comprise
claims under a number of different statutory and common law
grounds....
Rather than resting on the specific legal
theory invoked,
res judicata generally is thought to turn
on the essential similarity of the underlying events giving
rise to the various legal claims
United States Steel Supply,
.
.
.
.
688 F.2d 166
“)
(citing Davis v.
(3d Cir.1982)
(in
banc))
19.
Accordingly,
the Court finds that Plaintiff has not
asserted any additional facts demonstrating the timeliness
of his claims,
and the Court therefore adheres to its prior
decision. An appropriate order follows this Opinion.
Kevin McNulty
United States District
Dated: November 30,
2012
11
dge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?