United States District Court, D. New Jersey
May 11, 2005.
STANLEY L. NIBLACK, Plaintiff,
CITY OF ASBURY PARK, et al., Defendants.
The opinion of the court was delivered by: MARY COOPER, District Judge
Plaintiff Stanley L. Niblack, a prisoner incarcerated at
Monmouth County Correctional Institution, seeks to bring this
action in forma pauperis pursuant to 28 U.S.C. § 1915. The
Court (1) grants Plaintiff's application to proceed in forma
pauperis; (2) directs the Clerk to file the Complaint without
pre-payment of the filing fee; (3) assesses the $250.00 filing
fee against Plaintiff; (4) directs the agency having custody of
Plaintiff to deduct an initial partial filing fee from
Plaintiff's institutional account and forward same to the Clerk,
when funds exist; and (5) directs the agency having custody of
Plaintiff to forward payments from his institutional account to
the Clerk each subsequent month that the amount in the account
exceeds $10.00, until the $250.00 filing fee is paid in full.
See 28 U.S.C. § 1915(a), (b). Having reviewed Plaintiff's allegations, the Court
dismisses the Complaint in part.
Plaintiff sues the City of Asbury Park and three of its police
officers for searching and seizing him without probable cause on
two occasions, allegedly in violation of his rights under the
Fourth Amendment of the United States Constitution, applicable to
states through the Fourteenth Amendment, and 42 U.S.C. § 1983. He
asserts the following facts in support of his claims. On December
26, 2002, officers Montgomery, White and Newman stopped
Plaintiff, searched him, and held him for 30 minutes. Plaintiff
asserts that on July 11, 2003, the same officers pulled him over
for no reason, as he was driving. He alleges that when he
complained about harassment, the officers searched the vehicle,
manually and by using a dog.
Plaintiff states that he wrote to the prosecutor's office and
the Chief of Police but he received no relief. He asks this Court
to award damages against each Defendant and to order the City to
initiate disciplinary proceedings against the officers.
II. LEGAL STANDARD FOR SUA SPONTE DISMISSAL
The in forma pauperis statute requires the Court, prior
to docketing or as soon as practicable after docketing, to review
a complaint in a civil action in which a plaintiff is proceeding
in forma pauperis or a prisoner seeks redress against a
governmental employee or entity. See 28 U.S.C. §§ 1915(e)(2)(B), 1915A. The
PLRA requires the Court to sua sponte dismiss any claim if
the Court determines that it is frivolous, malicious, fails to
state a claim on which relief may be granted, or seeks monetary
relief from a defendant who is immune from such relief. Id.
"When a federal court reviews the sufficiency of a complaint,
before the reception of any evidence either by affidavit or
admissions, its task is necessarily a limited one. The issue is
not whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claims."
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). "In addition,
under a notice pleading system, it is not appropriate to require
a plaintiff to plead facts establishing a prima facie case."
Swierkiewicz v. Soreman, 534 U.S. 506, 511 (2002); see
Leatherman v. Tarrant County Narcotics Intelligence & Coord.
Unit, 507 U.S. 163, 168 (1993). Federal Rule of Civil Procedure
8(a)(2) requires a complaint to include only "a short and plain
statement of the claim showing that the pleader is entitled to
relief." Fed.R.Civ.P. 8(a)(2). The statement of the claim must
simply "give the defendant fair notice of what the plaintiff's
claim is and the grounds upon which it rests." Conley v.
Gibson, 355 U.S. 41, 47 (1957). "This simplified notice pleading
standard relies on liberal discovery rules and summary judgment
motions to define disputed facts and issues and to dispose of unmeritorious claims." Swierkiewicz, 534 U.S. at 512. Moreover,
a pro se complaint is held to less stringent standards than
formal pleadings drafted by lawyers. Haines v. Kerner,
404 U.S. 519, 520 (1972).
A claim is frivolous if it "lacks even an arguable basis in
law" or its factual allegations describe "fantastic or delusional
scenarios." Neitzke v. Williams, 490 U.S. 319, 328 (1989);
see also Roman v. Jeffes, 904 F.2d 192, 194 (3d Cir. 1990).
"Given the Federal Rules' simplified standard for pleading, `[a]
court may dismiss a complaint only if it is clear that no relief
could be granted under any set of facts that could be proved
consistent with the allegations." Swierkiewicz, 534 U.S. at 514
(quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).
Liberally construing Plaintiff's allegations and accepting them
as true, as the Court is required to do at this stage of the
litigation, the Court construes Plaintiff's Complaint as
presenting two claims under 42 U.S.C. § 1983 for search and
seizure without probable cause, contrary to the Fourth and
Section 1983 of Title 42 of the United States Code authorizes a
person such as Plaintiff to seek redress for a violation of his
federal constitutional rights by a person who was acting under
color of state law. To recover under 42 U.S.C. § 1983, a plaintiff must show two elements: (1) a person deprived
him or caused him to be deprived of a right secured by the
Constitution or laws of the United States, and (2) the
deprivation was done under color of state law. See West v.
Atkins, 487 U.S. 42, 48 (1988); Adickes v. S.H. Kress & Co.,
398 U.S. 144, 152 (1970).
A. Statute of Limitations
The statute of limitations on civil rights claims is governed
by New Jersey's two-year limitations period for personal injury.
Wilson v. Garcia, 471 U.S. 261, 276 (1985); Montgomery v.
DeSimone, 159 F.3d 120, 126 (3d Cir. 1998); Cito v. Bridgewater
Twp. Police Dep't, 892 F.2d 23, 25 (3d Cir. 1989). This statute
requires that "an action for an injury to the person caused by a
wrongful act, neglect, or default, must be convened within two
years of accrual of the cause of action." Cito, 892 F.2d at 25
(quoting Brown v. Foley, 810 F.2d 55, 56 (3d Cir. 1987)). Under
federal law governing the accrual of § 1983 claims, "the
limitations period begins to run from the time when the plaintiff
knows or has reason to know of the injury which is the basis of
the section 1983 action." Montgomery, 159 F.3d at 126 (quoting
Genty v. Res. Tr. Corp., 937 F.2d 899, 919 (3d Cir. 1991)).
Here, Plaintiff alleges that three police officers stopped and
searched him without probable cause on two occasions, December
26, 2002, and July 11, 2003. The statute of limitations begins to run on an illegal search and seizure claim at the time
of the search and seizure. Montgomery, 159 F.3d at 126.
Plaintiff's first search and seizure claim accrued and the
statute of limitations began to run in on December 26, 2002. The
limitations period expired on December 26, 2004, one month before
Plaintiff executed this Complaint for mailing to the Clerk. Thus,
it is apparent from the face of the Complaint that Plaintiff's
this claim is time-barred.
The question remains as to whether this Court may dismiss the
Complaint sua sponte under 28 U.S.C. §§ 1915(e)(2)(B) and
1915A(b) as time-barred. The statute of limitations is an
affirmative defense that must generally be pleaded and proved by
the defendants. See Robinson v. Johnson, 313 F.3d 128,
134-136 (3d Cir. 2002) (statute of limitations under
28 U.S.C. § 2244(d)(1) for a habeas corpus petition under 28 U.S.C. § 2254 is
an affirmative defense); 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 been brought within the
statute of limitations, Ray, 285 F.3d at 297, a civil rights
claim may be dismissed as time-barred on defendant's motion to
dismiss where "the time alleged in the statement of a claim shows
that the cause of action has not been brought within the statute
of limitations." Bethel v. Jendoco Const. Corp., 570 F.2d 1168, 1174 (3d Cir. 1978) (citation omitted). The Court explained the
Third Circuit rule in the following passage:
Under Fed.R.Civ.P. 8(c), the statute of limitations
constitutes an affirmative defense to an action.
Under the law of this and other circuits, however,
the limitations defense may be raised on a motion
under Rule 12(b)(6), but only if the time alleged in
the statement of a claim shows that the cause of
action has not been brought within the statute of
limitations. . . . If the bar is not apparent on the
face of the complaint, then it may not afford the
basis for a dismissal of the complaint under Rule
Id. (citations and internal quotation marks omitted); see
also Robinson, 313 F.3d at 134-36.
Several federal circuits, in considering whether a district
court may sua sponte dismiss a claim as time-barred under
28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) where the time-bar is
apparent on the face of the Complaint, have permitted sua
sponte dismissal. See, e.g., Nasim v. Warden, Md. House of
Corr., 64 F.3d 951 (4th Cir. 1995); Pino v. Ryan, 49 F.3d 51
(2d Cir. 1995); Gartrell v. Gaylor, 981 F.2d 254, 256 (5th Cir.
1993); Myers v. Vogal, 960 F.2d 750, 751 (8th Cir. 1992);
Street v. Vose, 936 F.2d 38 (1st Cir. 1991). As the Fifth
Although the defense of limitations is an affirmative
defense, which usually must be raised by the
defendants in the district court, this court has held
that the district court may raise the defense sua
sponte in an action proceeding under
28 U.S.C. § 1915 . . . Thus, where it is clear from the face of a
complaint filed in forma pauperis that the claims
asserted are barred by the applicable statute of
limitations, those claims [can be] properly
Gartrell, 981 F.2d at 256 (citations omitted). This Court holds that sua sponte dismissal is appropriate
under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1) on statute
of limitations grounds if "the time alleged in the statement of a
claim shows that the cause of action has not been brought within
the statute of limitations." Bethel, 570 F.2d at 1174 (citation
omitted). Applying this standard here, dismissal of Plaintiff's
first Fourth Amendment claim is warranted because it is clear
from the face of his Complaint that the claim is
B. Municipal Liability
Plaintiff's search and seizure claim arising from the July 11,
2003, incident is not barred by the statute of limitations. The
Court will allow this claim to proceed as brought against the
individual officers. However, Plaintiff also seeks damages
against the City of Asbury Park for the allegedly unconstitutional search and seizure. Municipal liability under
42 U.S.C. § 1983 arises only when an official custom or policy
causes the constitutional deprivation. Monell v. Dep't of Soc.
Servs., 436 U.S. 658, 691-94 (1978). The city is not liable
under § 1983 simply because it employs a tortfeasor. Id. "[A]
failure to train, discipline or control can only form the basis
for section 1983 municipal liability if the plaintiff can show
both contemporaneous knowledge of the offending incident or
knowledge of a prior pattern of similar incidents and
circumstances under which the supervisor's actions or inaction
could be found to have communicated a message of approval to the
offending subordinate." Montgomery, 159 F.3d at 127.
Here, Plaintiff does not allege that the July 11, 2003, conduct
resulted from a policy or custom of the City of Asbury Park. Nor
does Plaintiff assert that any action or inaction on the part of
a policymaker encouraged the allegedly unconstitutional search
and seizure. Because the Complaint does not indicate that the
violation of his constitutional rights resulted from a policy or
custom of the City of Asbury Park, the Court will dismiss the
complaint insofar as asserted against the municipal defendant
without prejudice.*fn2 IV. CONCLUSION
For the reasons set forth above, the Court grants Plaintiff's
application to proceed in forma pauperis and dismisses the
Complaint in part. An appropriate Order accompanies this Opinion.