TINDAL v. MEYERS et al
Filing
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OPINION. Signed by Judge Dickinson R. Debevoise on 10/3/12. (jd, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
TODD M. TINDAL,
Plaintiff,
v.
WARDEN MEYERS, et al.,
Defendants.
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Civil No. 12-1257 (DRD)
OPINION
APPEARANCES:
TODD M. TINDAL, Plaintiff pro se
#629595/733739D
South Woods State Prison
215 Burlington Road South
Bridgeton, New Jersey 08302
DEBEVOISE, District Judge
Plaintiff, Todd M. Tindal, a state inmate presently confined
at the South Woods State Prison in Bridgeton, New Jersey, seeks
to bring this action in forma pauperis.
Based on his affidavit
of indigence, the Court will grant plaintiff’s application to
proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a)
(1998) and order the Clerk of the Court to file the Complaint.
At this time, the Court must review the Complaint, pursuant
to 28 U.S.C. §§ 1915(e)(2)(B) 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 concludes
that the Complaint should be dismissed as untimely.
I.
BACKGROUND
Plaintiff, Todd M. Tindal (“Tindal” or “Plaintiff”), brings
this civil action, pursuant to 42 U.S.C. § 1983, against the
following defendants: Warden Meyers of the Passaic County Jail;
Dr. Wabah; Medical Staff at the Passaic County Jail; and unnamed
Detail Sergeant and Officers with the Security Staff and
Transport Staff at the Passaic County Jail.
¶ 4b).
(Complaint, Caption,
The following factual allegations are taken from the
Complaint, and are accepted for purposes of this screening only.
The Court has made no findings as to the veracity of plaintiff’s
allegations.
Plaintiff alleges that, on July 9, 2007, while he was an
inmate at the Passaic County Jail, he slipped and fell and
severely injured his right knee.
He states that he waited in
pain for twenty minutes before an officer arrived to the unit.
Plaintiff was placed on a stretcher and taken to the Medical
Department at the Passaic County Jail, where the medical staff
took his temperature, blood pressure and loosely bandaged his
right knee with an ace bandage.
Plaintiff alleges that the staff
failed to properly splint his leg to prevent further injury, and
consequently, while he was on the stretcher, Plaintiff’s leg
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flopped sideways causing more pain and damage.
Plaintiff also
alleges that the medical staff refused to give him any medication
for the pain.
(Compl., ¶ 6).
It was determined that Plaintiff should be taken to the
emergency room at an outside hospital, so Plaintiff was rolled
onto a stretcher at 12:00 a.m. (apparently the following day,
July 10, 2007), and sent to the Intake area at the jail where
Plaintiff was left lying on the stretcher for eight hours.
During this time, Plaintiff was in pain, could not go to the
bathroom or have anything to drink.
After eight hours, Plaintiff
was taken to the Emergency room where he was diagnosed with torn
ligaments, tendons and meniscus in his right knee.
given a leg brace and crutches that were too small.
Plaintiff was
(Id.).
Plaintiff alleges that he saw a specialist who told him he
needed physical therapy to strengthen the muscle in his knee, and
surgery to repair the damage.
Plaintiff alleges that he
complained to Dr. Wabah for three weeks before physical therapy
was provided.
He also states that he filed numerous medical
slips for surgery and was told by Dr. Wabah that surgery would be
provided when Plaintiff was sent to a state prison facility.
Finally, Plaintiff complains that for the four months that he was
on crutches at Passaic County Jail, he was denied access to the
handicapped showers.
knee.
Plaintiff still has not had surgery for his
He does not allege that he made any further requests for
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surgery after Dr. Wabah allegedly denied such treatment.
When
Plaintiff was transferred from the Passaic County Jail to a state
prison facility, Dr. Wabah and the other jail officials no longer
were responsible for his medical care.
No state officials are
named as defendants or are alleged to have provided deficient
medical care after Plaintiff came into their custody and before
the statute of limitation period had run.
Plaintiff seeks compensatory and punitive damages in the
amount of $1.5 million.
II.
(Compl., ¶ 7).
STANDARDS FOR A SUA SPONTE DISMISSAL
The Prison Litigation Reform Act (“PLRA”), Pub. L. No. 104134, §§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996),
requires a district court to review a complaint in a civil action
in which a prisoner is proceeding in forma pauperis or seeks
redress against a governmental employee or entity.
The Court is
required to identify cognizable claims and to sua sponte dismiss
any claim that is frivolous, 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.
1915(e)(2)(B) and 1915A.
28 U.S.C. §§
This action is subject to sua sponte
screening for dismissal under both 28 U.S.C. § 1915(e)(2)(B) an
§ 1915A.
In determining the sufficiency of a pro se complaint, the
Court must be mindful to construe it liberally in favor of the
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plaintiff.
See Erickson v. Pardus, 551 U.S. 89, 93–94 (2007)
(following Estelle v. Gamble, 429 U.S. 97, 106 (1976); see also
United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992).
The Supreme Court refined the standard for summary dismissal
of a complaint that fails to state a claim in Ashcroft v. Iqbal,
556 U.S. 662 (2009).
The Court examined Rule 8(a)(2) of the
Federal Rules of Civil Procedure which provides that a complaint
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).
Citing its opinion in Bell Atlantic Corp. v. Twombly, 550 U.S.
544 (2007) for the proposition that “[a] pleading that offers
‘labels and conclusions’ or ‘a formulaic recitation of the
elements of a cause of action will not do,’”
Iqbal, 556 U.S. at
678 (quoting Twombly, 550 U.S. at 555), the Supreme Court held
that, to prevent a summary dismissal, a civil complaint must now
allege “sufficient factual matter” to show that the claim is
facially plausible.
This then “allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.”
Fowler v. UPMC Shadyside, 578 F.3d 203 (3d
Cir. 2009)(citing Iqbal, 556 U.S. at 676).
The Supreme Court’s
ruling in Iqbal emphasizes that a plaintiff must demonstrate that
the allegations of his complaint are plausible.
See id. at 678-
79; see also Twombly, 505 U.S. at 555, & n. 3; Warren Gen. Hosp.
v.. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011).
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“A complaint
must do more than allege the plaintiff’s entitlement to relief.
A complaint has to ‘show’ such an entitlement with its facts.”
Fowler, 578 F.3d at 211 (citing Phillips v. County of Allegheny,
515 F.3d 224, 234–35 (3d Cir. 2008).
III.
SECTION 1983 ACTIONS
Plaintiff brings this action pursuant to 42 U.S.C. § 1983.
Section 1983 provides in relevant part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory ... subjects, or causes to be subjected,
any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other
proper proceeding for redress ... .
Thus, to state a claim for relief under § 1983, a plaintiff must
allege, first, the violation of a right secured by the
Constitution or laws of the United States and, second, that the
alleged deprivation was committed or caused by a person acting
under color of state law.
West v. Atkins, 487 U.S. 42, 48
(1988); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir.
1994).
See also Malleus v. George, 641 F.3d 560, 563 (3d Cir.
2011).
III.
ANALYSIS
Plaintiff appears to be asserting a Fourteenth Amendment
denial of medical care claim under § 1983.
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However, based on the
facts as alleged on the face of the Complaint, this Court finds
that the Complaint is time-barred.
Federal courts look to state law to determine the
limitations period for § 1983 actions.
U.S. 384, 387–88 (2007).
See Wallace v. Kato, 549
Civil rights or constitutional tort
claims, such as a denial of medical care claim presented here,
are best characterized as personal injury actions and are
governed by the applicable state's statute of limitations for
personal injury actions.
See Wallace, supra; Wilson v. Garcia,
471 U.S. 261, 280 (1985).
Accordingly, New Jersey’s two-year
limitations period on personal injury actions, N.J. Stat. Ann., §
2A:14–2, governs Plaintiff’s claim here.
See Montgomery v.
DeSimone, 159 F.3d 120, 126 & n. 4 (3d Cir. 1998); Cito v.
Bridgewater Township Police Dept., 892 F.2d 23, 25 (3d Cir.
1989).
Under N.J. Stat. Ann. § 2A:14–2, an action for an injury
to the person caused by a wrongful act, neglect, or default must
be commenced within two years of accrual of the cause of action.
Cito, 892 F.2d at 25; accord Brown v. Foley, 810 F.2d 55, 56 (3d
Cir. 1987).
The statute of limitations is an affirmative defense that
the defendants generally must plead and prove.
See Bethel v.
Jendoco Const. Corp., 570 F.2d 1168, 1174 (3d Cir. 1978) (statute
of limitations on civil rights claim is an affirmative defense).
While a plaintiff is not required to plead that the claim has
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been brought within the statute of limitations, Ray v. Kertes,
285 F.3d 287, 297 (3d Cir. 2002), the Supreme Court observed in
Jones v. Bock, 549 U.S. 199, 215 (2007), that if the allegations
of a complaint, “show that relief is barred by the applicable
statute of limitations, the complaint is subject to dismissal for
failure to state a claim.”
In this case, Plaintiff plainly alleges that his injury
occurred on July 9, 2007, and that his medical mistreatment and
denial of medical care commenced on that date.
Further, to the
extent that he knew he needed surgery and his request for knee
surgery was denied, these acts occurred in the four months
following his emergency care in 2007.
Thus, at the latest, the
statute of limitations for Plaintiff’s denial of medical care
claim accrued and began to run four months after July 9, 2007, or
sometime in November 2007.
He would have two years from that
date, or in or about November 2009, to timely file his asserted
claim.
Plaintiff’s claim for denial of medical care was filed on
or about February 21, 2012, well beyond the statute of
limitations.
Plaintiff does not explain why he waited over four years to
bring this action, and none of the circumstances warranting
tolling appear to apply.
Plaintiff has not alleged any basis for
tolling of the statute of limitations.
New Jersey statutes set
forth certain bases for “statutory tolling.”
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See, e.g., N.J.S.A.
§ 2A:14–21 (detailing tolling because of minority or insanity);
N.J.S.A. § 2A 14–22 (detailing tolling because of nonresidency of
persons liable).
The Complaint does not allege any basis for
statutory tolling.
New Jersey law also permits “equitable tolling” where “the
complainant has been induced or tricked by his adversary’s
misconduct into allowing the filing deadline to pass,” or 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.
See Freeman v. State, 347 N.J. Super. 11, 31
(citations omitted).
“However, absent a showing of intentional
inducement or trickery by a defendant, the doctrine of equitable
tolling should be applied sparingly and only in the rare
situation where it is demanded by sound legal principles as well
as the interests of justice.”
Id.
When state tolling rules
contradict federal law or policy, in certain limited
circumstances, federal courts can turn to federal tolling
doctrine.
See Lake v. Arnold, 232 F.3d 360, 370 (3d Cir. 2000).
Under federal law, equitable tolling is appropriate in three
general scenarios: (1) where a defendant actively misleads a
plaintiff with respect to her cause of action; (2) where the
plaintiff has been prevented from asserting her claim as a result
of other extraordinary circumstances; or (3) where the plaintiff
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asserts her claims in a timely manner but has done so in the
wrong forum.
In this case, Plaintiff fails to articulate any
basis for equitable tolling.
It is apparent from the face of the Complaint that
Plaintiff’s § 1983 denial of medical care claim is time barred
and this Court will dismiss the Complaint as untimely.
See
Paluch v. Secretary Pennsylvania Dept. of Corrections, 442 Fed.
Appx. 690, 694 n. 2 (3d Cir. 2011)(“Although the statute of
limitations applicable to § 1983 actions is an affirmative
defense, which may be waived by the defendant, it is appropriate
to dismiss sua sponte under § 1915(e)(2) a complaint whose
untimeliness is apparent from the face of the record”); McPherson
v. United States, 2010 WL 3446879 at *4 (3d Cir. Sept.2, 2010)
(“[W]hen a statute-of-limitations defense is apparent from the
face of the complaint, a court may sua sponte dismiss the
complaint pursuant to 28 U.S.C. § 1915 or 28 U.S.C. § 1915A”).
If Plaintiff believes that he can assert facts showing that
tolling is warranted, he may move to re-open this case and to
file an amended complaint stating the basis for tolling.1
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Plaintiff should note that when an amended complaint is
filed, the original complaint no longer performs any function in
the case and “cannot be utilized to cure defects in the amended
[complaint], unless the relevant portion is specifically
incorporated in the new [complaint].” 6 Wright, Miller & Kane,
Federal Practice and Procedure § 1476 (2d ed.1990)(footnotes
omitted). An amended complaint may adopt some or all of the
allegations in the original complaint, but the identification of
the particular allegations to be adopted must be clear and
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IV.
CONCLUSION
Therefore, for the reasons set forth above, the Complaint
will be dismissed without prejudice, in its entirety as against
all named defendants in this action, pursuant to both 28 U.S.C.
§§ 1915(e)(2)(B)(ii) and 1915A(B)(1).
An appropriate order
follows.
s/ Dickinson R. Debevoise
DICKINSON R. DEBEVOISE
United States District Judge
Dated:
October 3, 2012
explicit. Id. To avoid confusion, the safer course is to file
an amended complaint that is complete in itself. Id.
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