GOFAN JUNIOR v. PEREKSTA et al

Filing 222

MEMORANDUM filed. Signed by Judge Peter G. Sheridan on 11/17/2022. (jdg)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
HENRY SAYE GOFAN JUNIOR,
Plaintiff,

Civ. No. 16-8559 (PGS)(LHG)

v.
STEVEN ELMER,

MEMORANDUM

Defendant.

PETER G. SHERIDAN, U.S.D.J.
Plaintiff, Henry Saye Gofan Junior (“Plaintiff”), is proceeding through the law
firm of Greenberg Traurig, LLC, appointed counsel with a civil rights
complaint

against the sole remaining Defendant Steven Elmer (“Defendant”).
Presently
pending before this Court is Defendant Elmer’s motion for summary judgm
ent.
(ECF No. 212.) For the following reasons, the motion for summary
judgment is
granted.
I.
Plaintiff, who was initially pro Se, filed his Complaint with this Court
on
November 16, 2016. The Court address only the facts relevant to Defend
ant’s motion
for summary judgment.
On May 6, 2014, Plaintiff was at the Trenton Transit Center in
Trenton, New

Jersey. (ECF No. 212-1, Def. ‘S Statement of Material Facts (“DSOMF”)

¶

1; ECF

No. 212-3 at 5-20, Pl.’s Dep. at 16:14-1 5.) While at the train stati
on, Plaintiff had
“words” with someone. (Pl.’s Dep. at 16:19-2 1.) Police offic
ers came and asked
Plaintiff to leave. (DSOMF

¶

2; Pl.’s Dep. at 16:21-17:6.) Plaintiff admits he had

been drinking, and Defendant, who was a New Jersey Transit
Police Officer at the
time, states Plaintiff appeared heavily intoxicated. (DSOMF

¶J

3, 4; P1.’s Dep. at

20:21-21:5; ECF No. 212-3 at 22-26, Certification of Steven Elm
er (“Elmer’s Cert.”)

Plaintiff testified at his deposition that he went outside and
was talking to a
female and a male when a police officer drove by. (Pl.’
s Dep. at 2 1:12-22:6.)
Plaintiff stated that he then got in a car and drove off. (Id.
at 22:7-23:2.) Defendant
Elmer observed Plaintiff get into a vehicle’s passenger side
arid then move over to
the driver’s seat and begin to drive away. (DSOMF

¶ 7; Elmer’s Cert. ¶

12.)

Plaintiff testified that upon driving off, he noticed an
officer had his siren
lights activated on his vehicle behind him. (Pl.’s Dep.
at 24:1-9.) Plaintiff states that
he was not sure if he was being pulled over, but he decid
ed to park his car. (Id. at
24:10-25:6.) Plaintiff hit a truck while attempting to park
his vehicle. (Id. at 25:910.) Defendant Elmer declares that he attempted to initia
te a motor vehicle stop, at
which point Plaintiff “fled at a very high rate of spee
d.” (Elmer’s Cert.

¶

13.)

Defendant Elmer pursued Plaintiff, and the pursuit ende
d when Plaintiff’s vehicle
struck a parked truck. (Id.

¶J

14-16.)
2

Defendant stopped behind Plaintiff’s vehicle and approached the driver’s side
of Plaintiff’s vehicle. (DSOMF

¶

9; Elmer’s Cert.

¶

17; Pl.’s Dep. at 25:7-15.)

Plaintiff testified that Defendant approached Plaintiff’s open car window and
requested Plaintiff’s license and registration. (Pl.’s Dep. at 27:9-24.) Plaintiff told
Defendant that he did not have a license. (DSOMF

¶

10; Pl.’s Dep. at 28:2-3.)

Defendant then instructed Plaintiff to exit the vehicle. (Elmer’s Cert. 18; Pl.’s Dep.
¶
at 28:8-9.) Defendant indicates that Plaintiff refused to exit the vehicle. (Elmer
’s
Cert.

¶

18.) Plaintiff testified that he informed Defendant that his door did not work.

(P1.’s Dep. at 28:9-10.)
Defendant and Plaintiff’s versions of what occurred next differ. Defendant
declares that after Plaintiff was non-compliant with Defendant’s order to
exit the
vehicle, Defendant employed his “OC” spray on Plaintiff. (Elmer’s Cert.

¶ 20.) A

New Jersey Transit Police Officer then arrived at the scene and assisted Defend
ant
in pulling Plaintiff from the vehicle through the passenger side. (Id. ¶21.)
According
to Defendant, Plaintiff was physically resisting arrest and would not allow
himself
to be handcuffed. (Id.

¶ 22.) Plaintiff testified that once he was “yanked” out of the

car, he was put on the ground and Defendant put his knee in Plaintiff’s back
and was
twisting Plaintiff’s arms. (Pl.’s Dep. at 29:21-24.) Plaintiff was
eventually
handcuffed. (Elmer’s Cert.

¶ 23.)

3

Plaintiff testified that he was placed in the back of a police car and taken to
the hospital. (P1. ‘s Dep. at 32:9-13, 33:15-16.) Defendant states Plaintiff refused to
give his name and refused to submit to a breathalyzer test so he transported Plaintiff
to the hospital where a blood test could occur. (DSOMF

JJ

13, 14; Elmer’s Cert.

¶J

24-28.)
At the hospital, Plaintiff refused to give his name, so fingerprints were taken
to reveal his identity. (DSOrVIF

¶

15, Elmer’s Cert.

¶

29; Pl.’s Dep. at 35:17-19.)

Plaintiff testified that he refused to consent to his blood being taken and Defendant
ordered hospital staff to take Plaintiff’.s blood. (Pl.’s Dep. at 40:16-41:16.)
Defendanthad obtained a blood draw warrant from a Judge of the Superior Court of
New Jersey, Mercer County. (DSOMF ¶J 16, 17; Elmer’s Cert. 30-33.) The blood
¶IJ
draw warrant was authorized and signed off by the Honorable Thomas M. Brown,
J.S.C. (DSOMF

¶

18; see ECF No. 212-3 at 66, Blood Draw Warrant.) Defendant

returned to the hospital and advised staff that a warrant had been obtained for a blood
withdraw. (DSOMF

¶

19, Elmer’s Cert. ¶j 33, 34.)

This Court previously summarized the procedural history of this matter as
follows:
In 2016, Plaintiff brought. this federal civil rights suit
against numerous parties, including Elmer. (See ECF 1).
In February 2017, this Court screened Plaintiff’s initial
complaint and permitted Plaintiff’s claims against Elmer
to proceed. (See ECF 7). In June, 2017, Elmer filed a
motion to dismiss. (See ECF 38). In October 2017, this
4

Court administratively terminated Elmer’s motion to
dismiss, but permitted him to file—a motion for summary
judgment within thirty days of filing an answerto the
complaint. (See ECF 50). Elmer then filed an answer. (See
ECF 57).
In December, 2017, Elmer filed his first motion for
summary judgment. (See ECF 68). In June 2018, this
Court granted in part and denied in part Elmer’s first
motion for summary judgment. (See ECF 92 & 93).
[The Court found Defendant Elmer was entitled to
qualified immunity on Plaintiffs false arrest claim but
found Defendant Elmer had not shown that he was entitled
to qualified immunity on Plaintiff’s excessive force claim.
(See generally ECF No. 92.)]

Thus, after this Court’s June, 2018 decision, Plaintiffs
remaining claims against Elmer were for excessive force
as well as fingerprinting and taking blood without a
warrant.
The parties then conducted further discovery with respect
to Plaintiff’s claims against Elmer. Plaintiff was deposed
by Elmer’s counsel on January 30, 2020. (See Pl.’s Dep.,
ECF 176-6).
Elmer filed another motion for summary judgment in
August, 2020. (See ECF 176).
(ECF No. 196 at 4-9.)
On March 31, 2021, the Court granted in part and denied in part
Defendant’s
second motion for summary judgment. (See ECF No. 196.)
The Court found
Defendant was entitled to summary judgment on Plaintiffs fingerp
rinting claim
5

because Plaintiff was properly seized. (Id. at 17.) The Court found Defendant was
not entitled to summary judgment based on qualified immunity on Plaintiffs
excessive force claim. (Id. at 9-17.) Finally, the Court found Defendant was not
entitled to summary judgment on Plaintiffs claim of a warrantless blood draw
because Defendant failed to supply this Court with a copy of the warrant. (Id. at 1718.) Thus, after this Court’s March, 2021 decision, Plaintiffs remaining claims
against Defendant were for excessive force and taking blood without a warrant.
On June 22, 2022, Defendant filed the instant motion for summary judgment.
(ECF No. 212.) Defendant argues that Plaintiffs remaining claims are time-barred
based on the relevant statute of limitations. (See ECF No. 212-2 at 12-16.) Defendant
also argues again the Plaintiffs blood was drawn pursuant to valid warrant. (See id.
at 16-17.) On October 18, 2022, Plaintiff filed an opposition to the motion for
summary judgment. (ECF No. 218.) Defendant filed a reply. (ECF No. 220.) The
Court held oral argument on the motion for summary judgment on November 16,
2022.
II.
Summary judgment is appropriate where “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). A tact is material if it “might affect the outcome
of the suit under the governing law” and a dispute about a material fact is genuine
6

“if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.s. 242, 248 (1986).
Disputes over irrelevant or unnecessary facts will not preclude the Court from
granting a motion for summary judgment. See id.
A party moving for summary judgment has the initial burden of showing the
basis for its motion and must demonstrate that there is an absence of a genuine issue
of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “A party
asserting that a fact [is notj genuinely disputed must support the assertion by

.

citing to particular parts of materials in the record, including depositions, documents
•

.

.,

affidavits or declarations, stipulations (including those made for purposes of the

motion only), admissions, interrogatory answers, or other materials.” Fed. R. Civ. P.
56(c)(1)(A). After the moving party adequately supports its motion, the burden shifts
to the nonmoving party to “go beyond the pleadings and by her own affidavits, or
by the depositions, answers to interrogatories, and admissions on file, designate
specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at
324 (internal quotation marks omitted). To withstand a properly supported motion
for summary judgment, the nonmoving party must identify specific facts and
affirmative evidence that contradict the moving party. See Anderson, 477 U.S. at
250. “[Ijf the non-movant’s evidence is merely ‘colorable’ or is ‘not significantly
probative,’ the court may grant summary judgment.” Messa v. Omaha Prop. & Cas.
7

Ins. c’o., 122 F. Supp. 2d 523, 528 (D.N.J. 2000) (quoting Anderson, 477 U.S. at
249-50)). “if reasonable minds could differ a.s to the import of the evidence,”
however, summary judgment is not appropriate. See Anderson, 477 U.S. at 250-51.
“in considering a motion for summary judgment, a district court may not make
credibility determinations or engage in any weighing of the evidence; instead, the
nonmoving party’s evidence ‘is to be believed and all justifiable inferences are to be
drawn in his favor.” Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004)
(quoting Anderson, 477 U.S. at 255). The Court’s role in deciding a motion for
summary judgment is simply “to determine whether there is a genuine issue for
trial.” Anderson, 477 U.S. at 249. Ultimately, there is “no genuine issue as to any
material fact” ifa party “fails to make a showing sufficient to establish the existence
of an element essential to that party’s case.” Celotex, 477 U.S. at 322.
III.
Defendant Elmer argues Plaintiff’s excessive force and warrantless blood
draw claims are barred by the applicable statute of limitations. (ECF No.212-2 at
12-16.)
“it is well-settled that actions seeking a remedy under 42 U.S.C.

§

1983 ar&

governed by the statute of limitation applicable to state personal injury claims,
depending on where the cause of action accrued.” County ofhudson v. Janiszewski,
520 F. Supp. 2d 631, 649 (D.N.J. 2007) (citing Cito v. Bridgewater Twp. Police
8

Dep ‘t, 892 F.2d 23, 25 (3d Cir. 1989). A two-year statute of limitations period
applies to personal injury claims in New Jersey. N.J.S.A. 2A: 14-2. Thus, claims
brought pursuant to

§

1983 that accrued in New Jersey are subject to a two-year

statute of limitations period. Cito, 892 F.2d at 25. While the statute of limitations
period is determined by state law, federal law governs when the cause of action
accrued. Wallace v. Kato, 549 U.S. 384, 387 (2007). A cause of action accrues once
the plaintiff has a “complete and present cause of action” meaning “the plaintiff can
file suit and obtain relief.” Id (quoting BayArea Laundty and Dry Cleaning Pension
Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192,201, 118 S.Ct. 542, 139 L.Ed.2d
553 (1997). Importantly, the date of accrual stems from the date when a plaintiff
knew or should have known that the injury occurred, not when a plaintiff realizes he
or she realizes the injury gives rise to a legally cognizable claim. Pederson v. Nat ‘1
Collegiate Athletics Ass’n, No. 14-2544, 2015 WL 7573200, at *3 n.5 (D.N.J. Nov.
24, 2015).
A Fourth Amendment claim will accrue at the time of the allegedly wrongful
search or seizure. See Bullock v. Borough of Roselle, No. 17-13208, 2018 WL
4179481, at *5 (D.N.J. Aug. 31, 2018). A

§

1983 unreasonable search and seizurë

warrantless blood draw claim is analyzed under the Fourth Amendment. Missouri v.
McNeely, 569 U.S. 141, 145 (2013). A § 1983 claim of excessive force in connection
with an arrest is-a1so analyzed under the Fourth Amendment and accrues atThc time
9

of the arrest. See Graham v. Connor, 490 U.S. 386 (1989); Brown v. Buck, 614 F.
App’x 590, 592 (3d Cir. 2015).
As discussed above, the events giving rise to Plaintiff’s warrantlessblood
draw and excessive force claims stem from actions that occurred on May 16, 2014.
Plaintiff would have known of the injuries that constitutes the basis for his excessive
force claim and blood draw claim when the alleged mistreatment occurred on May
16, 2014. See Large v. Cry. ofMonigomety, 307 F. App’x 606, 607 (3d’Cir. 2009);
Cooper v. Gloucester Cry. Corr. Officers, Civ. A. No. 08-103, 2008 WL 305593, at
*4 (D. N J. Jan. 28, 2008). Plaintiff would have two years
from that (late, or by May
16, 2016, to file a timely excessive force claim and warrantless blood draw claim.
Plaintiff flIed his original complaint on November 18, 2016, six months after the
two-year statute of limitations period had run.
Plaintiff argues that Defendant has waived the statute of limitations
affirmative defense. (ECF No. 218 at 5-6.) Plaintiff alleges that Defendant waited
until this third motion for summary judgment to raise the statute of limitations
defense. During oral argument Plaintiff acknowledged that Defendant did raise the
statute of limitations affirmative—defense in his answer to Plaintiff’s Complaint.
However, Plaintiff argues that even though the affirmative defense was raised in
Defendant’s answer, Defendant waived that defense by not including a statute of
limitations argument in his previously filed motion to dismiss and two motions for
10

summary judgment. Plaintiff submits that the Court should find the defense waived
because it has been six years since Plaintiff filed his Complaint in this matter.
Plaintiff claims that an affirmative defense, such as the statute of limitations, must
be raised “early in litigation” and failure to adhere to this rule “generally results in
the waiver of that defense.” Id. at 5 citing Robinson v. Johnson, 313 F.3d 128, 134
(3d Cir. 2002); Chainey v. Street, 523 F.3d 200,209 (3d Cir. 2008)). The Court finds
this argument unpersuasive.
Federal Rule of Civil Procedure 8(c) requires that a defendant plead an
affirmative defense, such as a statute of limitations defense, in his answer. Rule 8(c)
states:
Affirmative Defenses. In pleading to a preceding pleading,
a party shall set forth affirmatively
statute of
limitations
and any other matter constituting an
avoidance or affirmative defense.
.

.

.

.

.

.

Fed.R.Civ.P. 8(c). “[T]he purpose of requiring the defendant to plead available
affirmative defenses in his answer is to avoid surprise and undue prejudice by
providing the plaintiff with notice and the opportunity to demonstrate why the
affirmative defense should not succeed.” In re Sterten, 546 F.3d 278, 285 (3d Cir.
2008) (quotation omitted). The Third Circuit has explained that a finding of waiver
of an affirmative defense is appropriate only when “the party raising the defense did
not do so at a ‘pragmatically sufficient time’ and if the opposing party would be
prejudiced if the defense were allowed.” In re Frescati Sh4ping Co., Ltd., 886 F.3d
11

291, 313 (3d Cir. 2018) (quoting Charpentier v. Godsil, 937 F.2d 859, 864 (3d Cir.
1991)).
Here, Defendant clearly raised the defense in his responsive pleading to
Plaintiff’s complaint. (See ECF No. 57 at 3.) In support of his argument that
Defendant waived this affirmative defense, Plaintiff cites only to cases where a
defendant failed to raise the defense of statute of limitations in their answer. (See
ECF No. 218 at 5-6.) As Defendant here did raise a statute of limitation defense in
his answer, the cases relied upon by Plaintiff are distinguishable. Defendant
complied with Federal Rule of Civil Procedure 8(c) and asserted a statute of
limitation defense in his answer.
Therefore, the Court finds Defendant has not waived the statute of limitations
affirmative defense. Absent a basis for equitable tolling, Plaintiff claims remaining
claims against Defendant are dismissed as time-barred.
The limitations period may be tolled under certain circumstances. State law
governs whether the limitations period should be tolled. McPherson v. United States,
392 F. App’x 938, 944 (3d Cir. 2010). A plaintiff may be entitled to equitable tolling
under New Jersey law
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.
12

Cason v. Arie St. Police Dep ‘t, No. 10-497, 2010 WL 2674399, at *5 n.4 (D.NJ.
June 29, 2010) (quoting Freeman v. New Jersey, 788 A.2d 867, 879—80 (N.J. Super.
Ct. App. Div. 2002)).
Plaintiff argues that the statute of limitations should be equitably tolled,
because during the two years following this incident at issue here, Plaintiff was
unable to afford adequate housing and had to move across thecountry to a shelter in
Minnesota. (See ECF No. 218 at 6-7). It appears Plaintiff is asserting that he is
entitled to equitable tolling because he was “in some extraordinary way” prevented
from asserting his rights. The Third Circuit has explained that “exceptional
circumstances” that may warrant equitable tolling arise when some extraordinary
circumstance prevents a plaintiff from asserting a right despite the exercise of
reasonable diligence. See Hanani v. New Jersey Dep ‘t ofEnvtl. Prot., 205 F. Appx
71, 76—77 (3d Cir.2006) (quoting Merritt v. Blame, 326 F.3d 157, 168 (3d
Cir.2003)).
Plaintiff fails to explain why his lack of adequate housing prevented him from
filing his lawsuit or prevented him from asserting his rights. See Singleton v. DA
Philadelphia, 411 F. App’x 470, 472-73 (3d. Cir. 2011) (finding the statute of
limitations should not be equitably tolled when Plaintiff was on work release and
did not have access to a law library.) Plaintiff also fails to demonstrate that he
exercised reasonable diligence in pursuing his claims. See Daniels v. University of
13

Pittsburgh Medical Center, No. 14-1118, 2015 WL 2341265, at

*

4 (W.D.P.A. May

14, 2015). In ])aniels, a case similar to this matter, Plaintiff failed to demonstrate
that her homelessness amounted to an extraordinary circumstance that prevented her
from asserting her claims in a timely manner. Plaintiff fails to cite to any cases to
support the argument that lack of adequate housing is an extraordinary circumstance
that would prevent an individual from asserting his rights. Equitable tolling is
extraordinary relief and is appropriate only in the situations cited above in Cason,
2010 WL 2674399, at *5 n.4. See Lake v. Arnold, 232 F.3d 360, 370 n. 9 (3d
Cir.2000). None of these circumstances are present in this case. Plaintiff fails to
show a basis for equitable tolling.
•

Plaintiff’s excessive force and blood withdraw claims were filed outside of

the statute of limitations time period. Therefore, Plaintiff’s remaining claims against
Defendant Elmer must be dismissed as time-barred. The Court, therefore, grants
Defendant’s motion for summary judgment.

14

Iv.
For the reasons expressed above, the Court will grant Defendant Elmer’s
motion for summary judgment (ECF No. 212) and will dismiss the remaining claims
in this matter as time-barred. An appropriate order follows.

t(1’7f
PETER G. SHERIDAN, U.S.D.J.

15