BUCCHERI v. AVILES
Filing
15
OPINION. Signed by Judge Jose L. Linares on 10/28/14. (gmd, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
LEONARDO BUCCHERI,
Civil Action No. 13-3692 (JLL)
Plaintiff,
v.
:
MEMORANDUM OPINION
OSCAR AVILES, et al.,
Defendants.
It appearing that:
1. Plaintiff Leonardo Buccheri (“Plaintiff’), incarcerated at East Jersey State Prison in
Rahway, New Jersey at the time of filing, brings this civil rights action, pursuant to 42
U.S.C.
§
1983, against Defendant Oscar Aviles. (ECF No. 1.)
2.
Plaintiff alleges claims arising from a lockdown of Hudson County Correctional
Center which occurred from January 2010 through May 2010. (ECF No. 1.) Plaintiff did not
file
his complaint until May 2013. (Id.)
3. On December 23, 2013, this Court entered an Opinion and Order dismissing the case
as barred by the statute of limitations. (ECF Nos. 2-3.)
4. The Court noted that Plaintiff previously participated in a multi-plaintiff case raising
these exact issues. See McGeachy v. Aviles, Civil Action No. 10-3562 (JLL).
The Court split
the original case into 28 separate matters, and designated Plaintiff as the plaintiff in
one of those
matters. See Buccheri v. Aviles, Civil Action No. 11-300 1 (JLL). In his newly
created case,
Plaintiff was given thirty days to submit a complete in forma pauperis applica
tion and an
amended complaint stating his own claims with regard to the lockdown. Id. at
ECF No. 3.
Plaintiff failed to do so.
5. After the Court dismissed the complaint in this as case as untimely, Plaintiff thereaf
ter
sought leave to file an amended complaint. (ECF Nos. 9, 10, 13.) Plaintiff argues
that the
statute of limitations should be equitably tolled because he was “tricked by the Defend
ant(s)
misconduct in their failure to deliver notice [of] Buccheri v. Aviles, Civil Action No.
113001...” (PI.’s Mot. 1, ECF No. 10.) More specifically, Plaintiff alleges that he was confin
ed at
Hudson County Correctional Center until May 22, 2011 and if a copy of the Court decisio
n in
Civil Action No. 11-3001 had been delivered to him, there would be a record in the prison
’s log
book. (Id.) Plaintiff argues that if the Court’s decision was rendered after that date,
he was
“prevented from asserting his claims as a result of extraordinary circumstances
” because
Defendants failed to forward a copy of the decision to him at his new facility. (Id.)
6. As explained in this Court’s previous Opinion and Order, New Jersey law permit
s
“equitable tolling” where “the complainant has been induced or tricked by his advers
ary’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, 788 A.2d 867 (N.J. Super. Ct. App. Div. 2002) (citations omitted). “Howe
ver, absent a
showing of intentional inducement or trickery by a defendant, the doctrine of equitab
le tolling
should be applied sparingly and only in the rare situation where it is demanded by
sound legal
principles as well as the interests ofjustice.” Id.
7.
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 his
cause of action;
(2) where the plaintiff has been prevented from asserting his claim as
a result of other
2
extraordinary circumstances; or (3) where the plaintiff asserts his claims in a timely manner but
has done so in the wrong forum. Id. at 370 n.9.
8.
In order to be eligible for equitable tolling, a plaintiff must exercise “reasonable
diligence in investigating and bringing [his or her) claims.” New Castle County v. Halliburton
NUS Corp., lii F.3d 1116, 1126 (3d Cir. 1997); Villalobos v. Fava, 342 N.J.Super. 38, 775 A.2d
700, 708 (2001).
9.
In this case, even if the Court were to accept Plaintiffs assertion that he did not
receive a copy of the Court’s Opinion and Order in Civil Action No. 11-3001, Plaintiff did not
exercise reasonable diligence.
Upon his transfer from Hudson County Correctional Center,
Plaintiff did not update the Court with his new address, in violation of the Local Civil Rules. In
fact, when the Court mailed a copy of the Opinion and Order in Civil Action No. 11-300
1 to
Plaintiffs last known address, it was returned as “undeliverable.” Moreover, Plaintiff did
not
take any other action to inquire as to the status of the case until he filed the instant action two
years later.
10. As a result of his failure to exercise reasonable diligence, Plaintiff is not entitled to
equitable tolling and the amended complaint will be dismissed as timebarred.
11. A district court generally grants leave to correct the deficiencies in a complaint by
amendment. See DelRio—Mocci v. Connolly Properties Inc., 672 F.3d 241, 251 (3d Cir. 2012);
Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000). However, in this case, the Court will
not
grant Plaintiff leave to file a second amended complaint because further amendment
would be
thtile it is apparent from the face of the complaint that the claims are timebarred and
despite
being given an opportunity to do so, Plaintiff has failed to allege any valid grounds for
tolling.
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1 1. An appropriate order follows.
Dated:
Linares, U.S.D.J.
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