MUHAMMAD v. CITY OF NEWARK et al

Filing 9

OPINION fld. Signed by Judge Claire C. Cecchi on 11/25/13. (sr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

1

v.

OPINION

et al.,

CITY OF

Defendants.

APPEARANCES:

Kwasi Sekou Muhammed
72 South 9th Street
Newark, NJ 07107
Petitioner Pro Se
CECCHI, District Judge:

This matter is before the Court on Plaintiffs motion to re-open this case and file an
amended Complaint (Dkt. # 7).

Plaintiff has requested appointment of pro bono counsel.

Plaintiffs motion to re-open will be granted and the Clerk of the Court will be directed to file the

I. BACKGROUND

211
Plaintiff
now
In

and

a

amended Complaint,
the same defendants as in

original Complaint.

his motion accompanying the

amended Complaint, Plaintiff states that he was shot on May 29, 1993, taken to the UMDNJ
hospital where a below-the-knee amputation was performed on his left leg as a result of the
shooting. Plaintiff was later incarcerated for unrelated offenses. While in the custody of the
Department of Corrections, Plaintiff was seen on February 8, 2010 by a doctor at Northern State
Prison. During the course of the examination, the doctor asked Plaintiff about the amputation and
expressed surprise that the limb was amputated when Plaintiff was 14 years old. Plaintiff asserts
that after learning that the shooting occurred in 1993, the doctor "informed Plaintiff that UMDNJ
has level one trauma and they

and should have had the technology in 1993 to save his limb."
to

II. STANDARD OF REVIEW
1
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be ~~~~:.:.•:!, or

to state a
from a defendant who is immune

such

U.S.C.

1915(e)(2)(B), 191
To survive dismissal "a complaint must contain sufficient factual matter, accepted as true,
to 'state a claim for relief that is plausible on its face.' 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."' Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citation omitted). The plausibility standard "asks for more than a sheer possibility that a
defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a
defendant's liability, it stops short of the line between possibility and plausibility of entitlement to
relief," and will be dismissed. Id. at 678 (citations and internal quotation marks omitted); Fowler
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I

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III. DISCUSSION

was
on a
0

whom Plaintiff had the

Plaintiff does not assert
knowledge

Plaintiff's injuries or the

of

Rather, Plaintiff appears to

argue that equitable tolling should apply here simply because the conversation caused him to
question whether his leg could have been saved.
Federal courts look to state law to determine the limitations period for § 1983 actions.

Wallace v. Kato, 549 U.S. 384, 387-88, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007) ("Section 1983
provides a federal cause of action, but in several respects relevant here federal law looks to the law
of the State in which the cause of action arose.

This is so for the length of the statute of

limitations[.]"). A complaint under § 1983 is "characterized as a personal injury claim and thus is
governed by the applicable state's statute of limitations for personal-injury claims." Dique v.

Police, 603 F .3d 181, 185 (3d
1

In

201 0) (citing Cito v.
1

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are

statute

Police

must

a

to state a

"
1993 and thus his

claims would have accrued on that date, since he was present at the time and had knowledge of the
alleged injuries as they occurred. The applicable two-year statute of limitations would have then
expired in May of 1995. Plaintiff's Complaint here was filed substantially out of time.
However, Plaintiff argues in his motion that the statute of limitations should be equitably
tolled since it was not until his February 8, 2010 conversation with the doctor at Northern State
Prison that he became aware of the possibility that his leg could have been saved.
New Jersey statutes set forth certain bases for "statutory tolling," see, e.g., N.J.S.A. §
2A:14-21 (detailingtollingbecauseofminorityorinsanity); N.J.S.A. § 2A 14-22 (detailing tolling
not

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" or

a

or

a

doctrine
it is demanded
as
In this case, Plaintiff fails to articulate

basis for equitable tolling. He has not shown

misconduct by any defendants with respect to filing dates of any constitutional claims, nor has he
shown any extraordinary circumstances which prevented him from timely filing here. He also
has not alleged that he timely asserted his rights through defective pleading or in the wrong forum.
Since Plaintiff has not shown that he is entitled to any form of tolling, the amended Complaint will
be dismissed without prejudice as untimely. Within forty-five days, Plaintiff may file a motion to
reopen and a second amended Complaint addressing any arguments as to why the statute of
limitations should not be deemed to have run.

IV. CONCLUSION
reasons set

not

run.

case

as moot.

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