MESADIEU v. CITY OF ELIZABETH et al

Filing 31

OPINION. Signed by Judge John Michael Vazquez on 6/6/2019. (sm)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

GUILIO MESADIEU,
Plaintiff

Civil Action No. 17-3252
OPINION

V.

CITY OF ELIZABETH, et al,
Defendants.

John Michael Vazpuez, U.S.D.J.
This matter comes before the Court on motions to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) by Defendants the City of Elizabeth, Elizabeth Police Department, James
Cosgrove, Officer Mikros, Ty Kelly, and Officer Gunter (the “Elizabeth Defendants”) (D.E. 25)
and former Attorney General of New Jersey, Christopher S. Porrino (‘Pothno” and collectively
the “Moving Defendants”) (D.E. 28).’ Pro se Plaintiff Guilio Mesadieu, who is proceeding in
formapauperis, did not respond to either motion to dismiss. On May 9,2019, however, Plaintiff
filed a motion for special relief, seeking full access to the law library while he remains incarcerated
and to prevent unlawful action against Plaintiff for requesting permission to use the law library.
D.E. 30. No Defendant responded to Plaintiffs motion. The Court reviewed the submissions in
support of the motions and considered the motions without oral argument pursuant to Fed. R. Civ.

The Elizabeth Defendants’ brief in support of their motion to dismiss will be referred to herein
as “Elizabeth Defs’ Br.” and Defendant Porrino’s brief in support of his motion to dismiss will be
referred to herein as “Porrino Br.”.

P. 78(b) and L. Civ. R. 78.1(b).

For the reasons stated below, Defendants’ motions are

GRANTED, and Plaintiffs motion is DENIED.
FACTUAL2 AND PROCEDURAL HISTORY

I.

Plaintiff, an African-American man, alleges that police officers from the Elizabeth City
Police Department have targeted him on multiple occasions due to his race. For purposes of the
pending motion, the Court need not retrace this case’s frill factual and procedural history. This
Court’s September 7,2017 and April 2,2018 Opinions screening Plaintiffs Complaint and First
Amended Complaint (the “FAC”) (D.E. 2, 8) include a detailed recounting of the factual
background of this matter. To the extent relevant to the instant motions, the Court incorporates
the factual and procedural history from both of its prior Opinions into this Opinion.
Plaintiff filed his initial twelve-count Complaint on May 5, 2017. D.E. I. On September
7, 2017, the Court granted Plaintiff informa pauperis status pursuant to 28 U.S.C.

§

1915 but

dismissed Counts I, II, III (as to alleged searches and the 2002 arrest only), IV, V, VI, VII, VIII,
X, XI (as to the 2002 arrest only), and XII of the Complaint without prejudice pursuant to 28
U.S.C.

§

1915(e)(2)(B) for failing to state a claim upon which relief can be granted. D.E. 2, 3.

The Court allowed Counts III and IX as to Plaintiffs 2001 and 2006 arrests to remain.3 D.E. 2, 3.
The Court gave Plaintiff leave to file an amended complaint addressing the deficiencies noted in
the Court’s Opinion. D.E. 2, 3.
On October 20,2017, Plaintiff filed the FAC. D.E. 5. On April 2,2018, the Court screened
the FAC pursuant 28 U.S.C.

§

1915(e)(2)(B). As a result of this screening, the Court permitted

factual background is taken from Plaintiffs First Amended Complaint (the “FAC”). D.E. 5.
When reviewing a motion to dismiss, a court accepts as true all well-pleaded facts in the
Complaint. Fowler v. UFMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).
2

The Counts that survived the initial screening of the Complaint were for false arrest and
unreasonable search and seizure (Count III) and false imprisonment (Count IX).
2

only Counts III and DC as to Plaintiffs 2001, 2003, and 2006 arrests, and Count VIII (claim for
common law tort of assault) as to Plaintiffs 2003 arrest to proceed. D.E. 8, 9. The Moving
Defendants filed the instant motions to dismiss after they were served.
II.

MOTLON TO DISMISS STANDARD

Federal Rule of Civil Procedure 1 2(b)(6) permits a court to dismiss a complaint that fails
“to state a claim upon which relief can be granted[.J” For a complaint to survive dismissal under
Rule I 2(b)(6), it must contain sufficient factual matter to state a claim that is plausible on its face.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Ad. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). A claim is facially plausible “when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Id. Further, a plaintiff must “allege sufficient facts to raise a reasonable expectation that discovery
will uncover proof of her claims.” Connelly

K

Lane Cons:. Corp., 809 F.3d 780, 789 (3d Cir.

2016). In evaluating the sufficiency of a complaint, district courts must separate the factual and
legal elements. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-211 (3d Cir. 2009). Restatements
of the elements of a claim are legal conclusions, and therefore, are not entitled to a presumption of
truth. Burtch

i’.

Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011). The Court, however,

“must accept all of the complaint’s well-pleaded facts as true.” Fowler, 578 F.3d at 210. Even if
plausibly pled, however, a complaint will not withstand a motion to dismiss if the facts alleged do
not state “a legally cognizable cause of action.” Turner v. J.P. Morgan Chase & Co., No. 14-7148,
2015 WL 12826480, at *2 (D.NJ. Jan. 23, 2015).
Because Plaintiff is proceedingpro se, the Court construes Plaintiffs Amended Complaint
liberally and holds it to a less stringent standard than papers filed by attorneys. Haines v. Kerner,
404 U.S. 519, 520 (1972).

“The Court need not, however, credit a pro se plaintiffs ‘bald

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assertions’ or ‘legal conclusions.” D’Agostino v CECOM RDEC, No. 10-4558, 2010 WL
3719623, at *1 (D.N.J. Sept. 10, 2010).
III.

LEGAL ANALYSIS

The Moving Defendants all seek to dismiss Plaintiffs claims because they are time-barred
under the relevant statutes of limitations. Elizabeth Defs’ Br. at 4-6; Pothno Br. at 12-13. The
statute of limitations is an affirmative defense not normally decided on a motion to dismiss. See
Crump v. Passaic County, 147 F. Supp. 3d 249, 259 (D.N.J. 2015).

However, “where the

complaint facially shows noncompliance with the limitations period,” dismissal on statute of
limitations grounds may be appropriate. Id. Here, the remaining counts of the FAC address
incidents that occurred in 2001, 2003, and 2006, and Plaintiff did not file his initial Complaint in
this matter until 2017. Therefore, the Moving Defendants’ statute of limitations arguments may
be addressed at this stage as there appears to be facial noncompliance with the limitations period.3
As discussed in the April 2 Screening Opinion (the “Opinion,” D.E. 8), the Court construes
Counts III and IX, which allege violations of the Fourth and Fourteenth Amendments, as claims
brought pursuant to 42 U.S.C.

§ 1983. Opinion at 10-11. “Section 1983 has no statute of

limitations of its own, but borrows the statute of limitations from state personal injury torts.”
Nguyen v. Pennsylvania, 906 F.3d 271, 273 (3d Cir. 2018). In New Jersey, personal injury torts
have a two-year statute of limitations. Dique v. NJ. State Police, 603 F.3d 181, 185 (3d Cir. 2010).
Federal law, however, governs the date when a Section 1983 claim accrues such that the statute of

In arguing that Plaintiffs claims are time barred, Porrino maintains that Plaintiffs claims that
relate to incidents that occurred in 2016 would not be barred by the relevant statute of limitations.
While Porrino is correct that these claims would not be time barred, this Court only permitted
Plaintiffs claims to proceed to the extent that they relied on Plaintiffs 2001, 2003 and 2006
arrests. D.E. 9. Accordingly, any incidents that occurred in 2016 are no longer relevant to this
litigation.
4

limitations begins to run. Nguyen, 906 F.3d at 273. Under federal law, “a claim accrues when the
last act needed to complete the tort occurs.” Id. Thus, a false arrest claim accrues “the moment
when legal process justifies the detention or, absent legal process, the moment of release.” Id. In
this instance, Plaintiff alleges that with respect to the 2001, 2003, and 2006 arrests, he was held
for “hours or sometimes an entire day.” FAC at 4. Consequently, Plaintiffs Section 1983 claims
accrued in 2001,2003, and 2006, respectively. Plaintiffs Section 1983 claims, therefore, are timebarred because Plaintiff did not file suit until 2017, well past the two-year statute of limitations.
Accordingly, Counts III and IX are dismissed.
Count VIII, Plaintiffs common law tort claim, is also time-barred. As stated above,
personal injury tort claims have a two-year statute of limitations in New Jersey. Dique, 603 F.3d
at 185; see also N.J.S.A. 2A:14-2. A tort claim “accrues at the time when a right first arises to
institute and maintain an action against a wrongdoer.” Tevis v. Tei’is, 79 N.J. 422, 431(1979).
Here, Plaintiffs tort claim involves wrongful conduct that occurred incident to his arrest in 2003.
Thus, his claim accrued the day of the arrest. See, e.g., Bullock v. Borough of Rosdlle, No. 1713208, 2018 WL 4179481, at *9 (D.N.J. Aug. 31, 2018) (concluding that assault claim asserted in
parallel with Section 1983 excessive force claim accrued the day the excessive force occurred).
Because Plaintiffs tort claim accrued in 2003 and is subject to a two-year statute of limitations,
Count VIII is also dismissed as time barred.5
When granting a motion to dismiss, a court must decide whether to dismiss with or without
prejudice, the latter of which provides a plaintiff with opportunity to amend. Dismissal with
prejudice is appropriate if an amendment would be inequitable or futile. See Alston v. Parker, 363

The Court will not address the Moving Defendants’ remaining arguments as to dismissal because
Plaintiffs claims are all barred by the statute of limitations.
5

F.3d 229, 235-36 (3d Cir. 2004). Here, Plaintiffs claims are all barred by relevant statutes of
limitations. Moreover, the statute of limitations period is not a close call; Plaintiff’s claims were
filed several year too late. Therefore, the Court concludes that any further attempt would be futile.
See Walsh Sec. Inc.

ic

Cristo Prop. Mgmt., No. 97-3496, 2009 WL 1883988, at *2 (D.N.J. June

30, 2009) (“An amendment is futile where the statute of limitations has run and the relation-back
doctrine does not apply.”). Accordingly, the FAC is dismissed with prejudice as to the Moving
Defendants.
IV.

PLAINTIFF’S MOTION FOR SPECIAL RELIEF

On May 9,2019, Plaintiff filed a motion for special relief seeking expanded access to the
law library and to prevent any further wrongful action or retaliation in response to Plaintiffs
requests to use the law library. Plaintiff states that he is bringing his motion pursuant to Fed. R.
Civ. P. 65.1(d)6, which the Court construes as a motion for a temporary restraining order pursuant
to Fed. R. Civ. P. 65. To obtain a temporary restraining order pursuant to Rule 65, the moving
party must show: (I) a likelihood of success on the merits; (2) he will suffer irreparable harm if
the injunction is denied; (3) granting preliminary relief will not result in even greater harm to the
nonmoving party; and (4) the public interest favors such relief. Ferring Pharm., Inc. v. Watson
Pharm., Inc., 765 F.3d 205, 210 (3d Cir. 2014). The movant has the burden to establish that all
four factors favor injunctive relief. Id.
Plaintiff has been incarcerated since December 21, 2016 and is currently in custody at the
South Woods State Prison (“SWSP”) in Bridgeton, New Jersey.
(“Mesadieu Cert.”)

¶ 3, D.E.

Cert. of Guilio Mesadieu

30-1. Plaintiff maintains that in February he was only allowed to go

Plaintiff referred to Fed. R. Civ. P. 65.1(d) but it appears that he meant L. Civ. R. 65.1(d), which
provides that “[a]ll applications for provisional remedies.. or any other emergency relief may be
made at any time to the Judge to whom the case has been assigned.”

6

.

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to the library once a week, which is “bare minimum” access. Id. ¶j 9-17. Prisoners have no
“freestanding right to a law library or legal assistance.” Lewis v. Casey, 518 U.S. 343, 351(1996).
Instead. “prisoners must be afforded the availability of either ‘adequate law libraries or adequate
assistance from persons trained in the law,’ in order to exercise their right of court access.”
Mitchelli’. Wydra, 377 F. App’x 143, 145 (3d Cir. 2010) (quoting Bounds

‘i’.

Smith, 430 U.S. 817,

828 (1977)). The right of access to the courts, however, is not unlimited. “Moreover, a prisoner
alleging a violation of his right of access must show that prison officials caused him past or
imminent ‘actual injury’ by hindering his efforts to pursue such a claim or defense.” Ward v.
Aviles, No. 11-6252, 2012 WL 2341499, at *2 (D.N.J. June 18, 2012). Plaintiff candidly admits
that he has been afforded weekly access to a law library (Mesadieu Cert.

¶ 17) and does not allege

that this “minimum access” has or will injure him in the future. Consequently, Plaintiff cannot
establish a likelihood of success on the merits for his access to the courts claim. See Ward, 2012
WL 2341499, at *3 (concluding that incarcerated plaintiff could not show a likelihood of success
for access to the courts claim based on the arguments that his requests for more time in the law
library were denied).
As for Plaintiffs claim for retaliation, a prisoner alleging retaliation in violation of the First
Amendment must show that (1) his conduct was constitutionally protected; (2) he suffered an
adverse action by prison officials; and (3) his protected conduct was a substantial or motivating
factor in the adverse action. Brighiwell v. Lehman, 637 F.3d 187, 195 (3d Cir. 2011). In this
instance, Plaintiff alleges that while in custody at SWSP, he was placed in pre-hearing detention
housing on a false charge and that a woman who worked in the library yelled at him and threatened
to “write him up” if he did not show up for an appointment. Plaintiff maintains that these acts
were done in retaliation for his requests for increased access to the law library. Mesadieu Cert.

7

¶1

14, 18. The alleged yelling and threats do not sufficiently constitute cognizable adverse actions.
Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000) (explaining that an adverse act must be
“sufficient ‘to deter a person of ordinary firmness’ from exercising his First Amendment rights.”
(quoting Suppan

i

Dadonna, 203 F.3d 228, 235 (3d Cir. 2000))). In addition, Plaintiff does not

allege that the prison officials that were responsible for placing him in pre-hearing detention
housing were aware of his complaints regarding the law library. Accordingly, Plaintiff does not
establish that his protected conduct was a substantial or motivating factor in any adverse action.
Therefore, Plaintiff also fails to establish a likelihood of success on the merits for his retaliation
claim.
Because Plaintiff cannot establish a likelihood of success on the merits, the Court need not
address the remaining factors for injunctive relief and his motion is denied. See Ward, 2012 WL
2341499, at *3
V.

CONCLUSION
For the reasons set forth above, Defendants’ motions to dismiss (D.E. 25, 28) are

GR4NTED and Plaintiff’s FAC is dismissed with prejudice as to Defendants the City of
Elizabeth, Elizabeth Police Department, James Cosgrove, Officer Mikros, Ty Kelly, Officer
Gunter and the former Attorney General of New Jersey, Christopher S. Porrino. In addition,
Plaintiffs motion for emergent relief(D.E. 30) is DENIED. An appropriate Order accompanies
this Opinion.
Dated: June 6,2019

fl\L

D 2 fm1
Jhn’Michael Vazque) U.S4D.J.

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