AVILA v. STATE OF NEW JERSEY ex rel.

Filing 11

MEMORANDUM OPINION filed. Signed by Judge Joel A. Pisano on 5/21/2013. (eaj)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

:
ABDIEL F. AVILA,
:

Civil Action No. 13-0779 (JAP)

Plaintiff,
:
v.
:

MEMORANDUM OPINION

STATE OF NEW JERSEY, et al.,
:
Defendants.
___________________________________:
1.

On February 7, 2013, Plaintiff Abdiel F. Avila (“Plaintiff”), a state inmate presently confined
at the New Jersey State Prison, submitted for filing his civil complaint (“Complaint”)
accompanied by his application to prosecute this matter in forma pauperis under 28 U.S.C.
§ 1915. See Docket Entry No. 1. The Court denied Plaintiff in forma pauperis status since
he had already incurred three strikes. See Docket Entry No. 2. The Court explained to
Plaintiff that he had to prepay the $350 filing fee. See id. In addition, the Court pointed out
numerous deficiencies in Plaintiff’s pleading and clarified that, in the event Plaintiff prepays
his filing fee, he should submit his amended pleading in conjunction with such prepayment.
See id.

2.

In response, Plaintiff submitted: (a) an amended pleading, see Docket Entry No. 4; (b)
another in forma pauperis application, see Docket Entry No. 5; and (c) a motion seeking
relief from the Court’s prior order. See Docket Entry No. 6 (asserting that the Court had to
address Plaintiff’s amended pleading on the merits prior to resolving the filing fee issue).
Since Plaintiff was subject to the “three-strikes” rule and had no right to litigate this matter
(including the claims stated in his amended pleading) until and unless he prepaid his filing

fee of $350, the Court re-denied him in forma pauperis status without addressing the merits
of his amended pleading. See Docket Entry No. 7.
3.

On April 16, 2013, Plaintiff prepaid his $350 filing fee.1 On May 15, 2013, he filed a motion
asserting that this Court dismissed his original complaint on the merits without providing
him with an opportunity to amend, even though the Court’s prior orders expressly provided
otherwise. See Docket Entry No. 9. Five days later, Plaintiff filed another motion requesting
service of his amended pleading upon the defendants,2 seemingly without the Court’s
screening of this pleading. See Docket Entry No. 10.

4.

Plaintiff is a recreational litigant who has filed numerous civil actions in various courts,
including this District and the United States Court of Appeals for the Third Circuit. The bulk
of Plaintiff's prior actions ensued from his redemptionist/sovereign citizen beliefs, which
Plaintiff asserted as the grounds for his claims. While many of Plaintiff’s prior challenges
were raised by means of habeas petitions, some of them were asserted in civil complaints
and, upon dismissal of those complaints, appealed. Those district level dismissals were with
prejudice, and his appeals were analogously dismissed pursuant to 28 U.S.C. §
1915(e)(2)(B). See, e.g., Avila v. Dominquez, U.S.C.A. Index No. 08-1549; Avila v. State
1

The filing fee for a civil rights complaint is $350.00. See 28 U.S.C. § 1914(a). However, effective
May 1, 2013, if a litigant prepay the filing fee, an additional $50 administrative fee shall be
submitted for a total of $400. See http://www.njd.uscourts.gov/sites/
njd/files/AdminFee_0.pdf (“Effective May 1, 2013, pursuant to Judicial Conference Policy, all
federal courts will begin charging a new $50 administrative fee for filing a Civil Action, Suit or
Proceeding in a District Court, in addition to the $350 filing fee for a total of $400”). Since the
action at bar was commenced prior to May 1, 2013, it is not subject to additional $50 fee.
2

Where a plaintiff is not proceeding in forma pauperis, the Court is not obligated to order the U.S.
Marshal to effect service under Fed. R. Civ. P. 4(c)(3) and 28 U.S.C. § 1915. Rather, the obligation
to effectuate service rests with the plaintiff, although the Court enjoys discretion to direct service by
the U.S. Marshal if the event the plaintiff shows good cause.
Page 2 of 7

of New Jersey, Civ. Action No. 09-2540 (RBK) (D.N.J.); Avila v. State of New Jersey, Civ.
Action No. 08-3699 (NLH) (D.N.J.); Avila v. U.S. District Court, Civ. Action No. 07-5760
(JEI) (D.N.J.).
5.

The instant action presents another action of the aforesaid type. Specifically, in his original
complaint, Plaintiff re-asserted his redemptionist/sovereign citizen beliefs and, through the
prism of the same, challenged his arrest that took place on June 30, 2006, his conviction and
sentence, and his resulting incarceration. See Docket Entry No. 1 (seeking vacatur of his
conviction, injunctive relief against potential retrial or re-conviction, expungement of his
criminal record, monetary damages for his conviction and incarceration and, for the reason
not entirely clear to this Court – remedy under the Second Chance Act). Plaintiff’s amended
complaint effectively paraphrased his original complaint, being

substantively

indistinguishable. See Docket Entry No. 4.
6.

To the extent Plaintiff challenges his conviction or sentence, or the fact of his incarceration,
or the execution of his sentence within the meaning of the Second Chance Act, his challenges
are subject to dismissal for lack of habeas jurisdiction. A habeas corpus petition is the sole
proper mechanism for a prisoner to challenge the “fact or duration” of his confinement,
Preiser v. Rodriguez, 411 U.S. 475, 498-99 (1973); see also Muhammad v. Close, 540 U.S.
749 (2004); Edwards v. Balisok, 520 U.S. 641 (1997); Leamer v. Fauver, 288 F.3d 532 (3d
Cir. 2002); accord Ganim v. Federal Bureau of Prisons, 235 F. App’x. 882 (3d Cir. 2007);
Castillo v. FBOP FCI Fort Dix, 221 F. App’x. 172 (3d Cir. 2007). The same applies to
challenges raised under the Second Chance Act. See Woodall v. Federal Bureau of Prisons,
432 F.3d 235, 237 (3d Cir. 2005); Johnson v. Zickefoose, 2012 U.S. Dist. LEXIS 166148

Page 3 of 7

(D.N.J. Nov. 20, 2012). Correspondingly, Plaintiff’s claims seeking either release or a
vacatur of his conviction/sentence, or injunctive relief in the form of an order barring re-trial,
or a “quantum change” in his confinement by the means of transfer to a community
correctional center, etc., will be dismissed as improperly raised in this civil rights matter.
7.

Plaintiff’s claim seeking expungement is also without merit, even if the Court were to
hypothesize that such challenge is cognizable in a civil matter. The remedy of expungement
might, theoretically, be viable under the dictum of Williams v. Fed. Bureau of Prisons, 85
F. App’x 299 (3rd Cir. 2004). In that matter, the Court of Appeals observed:
We have never had to decide whether to endorse the right of expungement
announced in Paine v. Baker, 595 F.2d 197 (4th Cir. 1979), and other Circuit
Courts of Appeals have expressly questioned its precedential value. [See]
Johnson v. Rodriguez, 110 F.3d 299, 308-09 n. 13 (5th Cir. 1997). . . . [In
Williams] the Court of Appeals for the Fourth Circuit announced that, in
limited circumstances, state prisoners have a federal due process right to have
“prejudicial erroneous information expunged from their prison files.”
[Paine,] 595 F.2d at 202. The [Paine] court held: “In certain limited
circumstances a claim of constitutional magnitude is raised where a prisoner
alleges (1) that information is in his file, (2) that the information is false, and
(3) that it is relied upon to a constitutionally significant degree.” Id. at 201.
. . . Even if we assume arguendo that [the inmate] can assert a Paine v. Baker
expungement claim . . . , it is nevertheless clear that he is not entitled to relief
[of expungement of] his prison file [where the information on file is factually
correct].
Williams, 85 F. App'x at 303 (emphasis supplied).
Here, however, the facts of Plaintiff’s conviction and sentence are not false and, thus, they
are properly in his record. Therefore, his expungement claim is facially without merit and
will be dismissed.

8.

Moreover, to the extent Plaintiff seeks monetary damages in connection with his conviction
or incarceration, his claims are premature under Heck v. Humphrey, 512 U.S. 477 (1994).

Page 4 of 7

In Heck, the Supreme Court addressed a corollary question to that presented in Preiser, i.e.,
whether a prisoner could implicitly challenge the constitutionality of his conviction or
sentence in a § 1983 suit seeking only damages (a form of relief not available through a
habeas corpus proceeding). The Court rejected § 1983 as a vehicle to implicitly challenge
the lawfulness of a criminal judgment.
[I]n order to recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness
would render a conviction or sentence invalid, a § 1983 plaintiff must prove
that the conviction or sentence has been reversed on direct appeal, expunged
by executive order, declared invalid by a state tribunal authorized to make
such determination, or called into question by a federal court's issuance of a
writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that
relationship to a conviction or sentence that has not been so invalidated is not
cognizable under § 1983.
Id. at 486-87 (footnote omitted).
In light of a prisoner’s inability to initiate a valid § 1983 action for wrongful conviction or
sentence until and unless such conviction or sentence is overturned, Heck coined the concept
of prematurity, pursuant to which “a § 1983 cause of action for damages attributable to an
unconstitutional conviction or sentence does not accrue until the conviction or sentence has
been invalidated.” Id. at 489-90. Therefore, Plaintiff’s claims for monetary damages are
subject to dismissal as facially premature, and he may raise them in a timely complaint only
if and after he has his conviction or sentence is overturned either by a state court’s decision
or as a result of a federal habeas writ.

Page 5 of 7

9.

Finally, Plaintiff’s challenges to his arrest are facially untimely.3 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. See 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 false arrest claims. 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. See Cito, 892 F.2d at 25; accord Brown v. Foley, 810 F.2d 55, 56 (3d
Cir. 1987). Unless their full application would defeat the goals of the federal statute at issue,
courts should not unravel states’ interrelated limitations provisions regarding tolling, revival,
and questions of application. See Wilson, 471 U.S. at 269. New Jersey statutes set forth
certain bases for “statutory tolling.” See, e.g., N.J.S.A. § 2A:14-21 (establishing tolling due
to minority or insanity); N.J.S.A. § 2A:14-22 (establishing tolling because of nonresidency
of the persons liable). New Jersey law 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
3

In Wallace v. Kato, 549 U.S. 384 (2007), the Supreme Court expressly addressed the
question when a § 1983 claim for false arrest in violation of the Fourth Amendment accrues. The
Court held that such claim (and the accompanying claim for false imprisonment) accrues
immediately upon the arrest at issue, and the period of limitations begins to run as soon as the
false imprisonment ends, i.e., when the arrestee becomes held pursuant to legal process. Hence,
the injury of false arrest/false imprisonment can be based solely on the events/restraint that takes
place from the moment of arrest and until the moment of arrestee being held pursuant to legal
process, e.g., arraignment.
Page 6 of 7

pleading or in the wrong forum. See Freeman v. State, 347 N.J. Super. 11, 31 (citations
omitted), certif. denied, 172 N.J. 178 (2002). “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. Here, Plaintiff’s redemptionist/sovereign citizen beliefs,
albeit facially meritless under the law, cannot qualify him as a person lacking mental capacity
and, thus, they cannot trigger the statutory tolling. Moreover, his prolific litigation history
verifies that he was availed to and took advantage of his unfettered opportunity to litigate
every claim he desired to raise. Indeed, he already challenged his arrest in a multitude of
prior actions, without success. See, e.g., Avila v. New Jersey, 2009 U.S. Dist. LEXIS 70692
(D.N.J. Aug. 10, 2009). Thus, he is not entitled to equitable tolling, and his false arrest claim
should be dismissed as time barred or, alternatively, under the doctrine of res judicata.
10.

Since all Plaintiff’s challenges are deficient, his original and amended pleadings should be
dismissed. Although the courts, generally, grant leave to file amended a deficient pleading
freely, 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), issuance of a leave to amend is not
warranted in this matter, since Plaintiff’s challenges make it abundantly clear that such
amendment would be futile, and he already was granted an opportunity to amend his original
complaint. See Foman v. Davis, 371 U.S. 178, 182 (1962). Therefore, his amended
complaint will be dismissed with prejudice.

Date: May 21, 2013
/s/ Joel A. Pisano
Joel A. Pisano
United States District Judge
Page 7 of 7