United States District Court, D. New Jersey
August 15, 2005.
PIERRE JOHNNY JOSEPH, Plaintiff,
DETECTIVE JAMES LOPEZ, et al., Defendants.
The opinion of the court was delivered by: DICKINSON DEBEVOISE, Senior District Judge
Plaintiff Pierre Johnny Joseph, currently detained at the
Passaic County Jail in Paterson, New Jersey, seeks to bring this
action in forma pauperis. He alleges violations of his
constitutional rights pursuant to 42 U.S.C. § 1983. Based on his
affidavit of indigence and the absence of three qualifying
dismissals within 28 U.S.C. § 1915(g), the Court will grant
Plaintiff's application to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915(a) and order the Clerk of the Court
to file the Complaint.
At this time, the Court must review the Complaint to determine
whether it should be dismissed as frivolous or malicious, for failure to state a claim upon which relief may be
granted, or because it seeks monetary relief from a defendant who
is immune from such relief.
The following factual allegations are taken from Plaintiff's
Complaint and are accepted as true for purposes of this review.
On or about June 22, 2002, Plaintiff was arrested while waiting
for a ride on the street. According to the police report
submitted with the complaint, Plaintiff pointed to another man
when an undercover officer attempted to buy drugs from
him.*fn1 He was searched incident to the arrest and officers
confiscated $198.00 off his person.
Plaintiff insisted to officers that he had nothing to do with
the drug sale, and that it was all a big mistake, but the
officers told him to "explain that to the judge and good luck in
court." Plaintiff, along with the co-defendant, were charged with
various drug crimes. Plaintiff was indicted by a grand jury;
however, on April 11, 2003, all charges against him were
dismissed on motion of the prosecutor. According to Plaintiff the
dismissal was based upon the guilty plea and sentence of the
co-defendant who admitted that Plaintiff had not conspired with him. It appears that Plaintiff was incarcerated at some point or
the entire time between his arrest and the dismissal of charges.
Liberally construing the instant complaint, Plaintiff contends
that his due process rights were violated, he was falsely
arrested, illegally searched, maliciously prosecuted, and falsely
imprisoned. He states that due to the false charges and
incarceration he suffered irreparable injury and loss of
property, and pain and suffering.
A. Standard of Review
This Court must dismiss, at the earliest practicable time,
certain in forma pauperis and prisoner actions that are
frivolous, malicious, fail to state a claim, or seek monetary
relief from a defendant who is immune from such relief. See
28 U.S.C. § 1915(e)(2) (in forma pauperis actions);
28 U.S.C. § 1915A (actions in which prisoner seeks redress from a
governmental defendant); 42 U.S.C. § 1997e (prisoner actions
brought with respect to prison conditions).
In determining the sufficiency of a pro se complaint, the
Court must be mindful to construe it liberally in favor of the
plaintiff. Haines v. Kerner, 404 U.S. 519, 520-21 (1972);
United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). The Court
must "accept as true all of the allegations in the complaint and
all reasonable inferences that can be drawn therefrom, and view
them in the light most favorable to the plaintiff." Morse v. Lower
Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997). The Court
need not, however, credit a pro se plaintiff's "bald
assertions" or "legal conclusions." Id.
A pro se complaint may be dismissed for failure to state a
claim only if it appears "`beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle
him to relief.'" Haines, 404 U.S. at 521 (quoting Conley v.
Gibson, 355 U.S. 41, 45-46 (1957)); Milhouse v. Carlson,
652 F.2d 371, 373 (3d Cir. 1981).
Where a complaint can be remedied by an amendment, a district
court may not dismiss the complaint with prejudice, but must
permit the amendment. Denton v. Hernandez, 504 U.S. 25, 34
(1992); Grayson v. Mayview State Hospital, 293 F.3d 103, 108
(3d Cir. 2002) (dismissal pursuant to 28 U.S.C. § 1915(e)(2));
Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000) (dismissal
pursuant to 42 U.S.C. § 1997e(c)(1)); Urrutia v. Harrisburg
County Police Dept., 91 F.3d 451, 453 (3d Cir. 1996).
B. Section 1983 Actions
A plaintiff may have a cause of action under 42 U.S.C. § 1983
for certain violations of his constitutional rights. Section 1983
provides in relevant part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory . . . subjects, or causes to be
subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other
proper proceeding for redress. . . .
Thus, to state a claim for relief under § 1983, a plaintiff must
allege, first, the violation of a right secured by the
Constitution or laws of the United States and, second, that the
alleged deprivation was committed or caused by a person acting
under color of state law. West v. Atkins, 487 U.S. 42
(1988); Piecknick v. Pennsylvania, 36 F.3d 1250
, 1255-56 (3d
C. Plaintiff's False Arrest and False Imprisonment Claims
Appear to Be Time-Barred.
Civil rights claims are best characterized as personal injury
actions and they 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 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).
Here, the statute of limitations began to run on the date that
the defendants allegedly harmed Plaintiff by falsely arresting
him and illegally searching him, i.e., June 22, 2002. See
Sameric Corp. of Delaware v. City of Philadelphia, 142 F.3d 582, 599 (3d Cir. 1998) (a section 1983 cause of action accrues
when the plaintiff knew or should have known of the injury upon
which the action is based); Montgomery, 159 F.3d at 126 (false
arrest claim accrues at time of the arrest); Rolax v. Whitman,
175 F. Supp.2d 720, 727-29 (D.N.J. 2001) (fact that plaintiff was
unreasonably searched was apparent to plaintiff at the time of
the search, and statute of limitations began to accrue at time of
A court may dismiss a complaint for failure to state a claim,
based on a time-bar, 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
Construction Corp., 570 F.2d 1168, 1174 (3d Cir. 1978) (citation
omitted). Although the statute of limitations is an affirmative
defense which may be waived by the defendant, it is appropriate
to dismiss sua sponte under § 1915(e)(2) a pro se civil
rights claim whose untimeliness is apparent from the face of the
Complaint. See, e.g., Pino v. Ryan, 49 F.3d 51, 53 (2d Cir.
1995) (holding, under former § 1915(d) in forma pauperis
provisions, that sua sponte dismissal prior to service of an
untimely claim is appropriate since such a claim "is based on an
indisputably meritless legal theory"); Hall v. Geary County Bd.
of County Comm'rs, 2001 WL 694082 (10th Cir. June 12, 2001)
(unpub.) (applying Pino to current §§ 1915(e)); Rounds v.
Baker, 141 F.3d 1170 (8th Cir. 1998) (unpub.); Johnstone v. United
States, 980 F. Supp. 148 (E.D. Pa. 1997) (applying Pino to
current § 1915(e)).
Plaintiff's complaint alleges that the events surrounding his
arrest, associated false imprisonment, and search and seizure
took place in June of 2002.*fn2 An affidavit provided by
Plaintiff and attached to the complaint is signed and dated March
23, 2005, more than two years later. Plaintiff alleges no facts
that would suggest a basis for either statutory or equitable
tolling.*fn3 Nevertheless, Plaintiff may be able to allege facts which
demonstrate that these claims should not be dismissed as
untimely. See, e.g., Wilson v. Garcia, 471 U.S. at 269
(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). Accordingly, the Court will
dismiss these claims, without prejudice, and allow Plaintiff to
file a motion to amend his complaint pursuant to Federal Rule of
Civil Procedure 15 to allege facts demonstrating that the false
arrest, false imprisonment, and illegal search and seizure claims
should not be dismissed with prejudice as time-barred.
D. Plaintiff's Malicious Prosecution Claim May Proceed.
In order to state a prima facie case for a § 1983 claim of
malicious prosecution pursuant to the Fourth Amendment, a
plaintiff must establish the elements of the common law tort as it has developed over time, Hilfirty v. Shipman, 91 F.3d 573,
579 (3d Cir. 1996), and that there has been a seizure, Gallo v.
City of Philadelphia, 161 F.3d 217, 222 (3d Cir. 1998); Luthe
v. Cape May, 49 F. Supp.2d 380, 393 (D.N.J. 1999). Under New
Jersey law, the common law tort elements of a malicious
prosecution action arising out of a criminal prosecution are: (1)
the criminal action was instituted by the defendant against the
plaintiff, (2) it was actuated by malice, (3) there was an
absence of probable cause for the proceeding, and (4) the
criminal proceeding was terminated favorably to the plaintiff.
See Lind v. Schmid, 67 N.J. 255, 262 (1975). A plaintiff
attempting to state a malicious prosecution claim must also
allege that there was "`some deprivation of liberty consistent
with the concept of seizure.'" Gallo, 161 F.3d at 222 (quoting
Singer v. Fulton County Sheriff, 63 F.3d 110, 116 (2d Cir.
1995)); see Albright v. Oliver, 510 U.S. 266 (1994).
Ordinarily, the statute of limitations on a malicious prosecution
claim begins to run on the date the plaintiff receives a
favorable termination of the prior criminal proceeding. See
Heck v. Humphrey, 512 U.S. 477, 489 (1994).
In the instant case, Plaintiff has alleged facts indicating
that his malicious prosecution claim may have merit. Therefore,
the Court will allow this claim to proceed and order Defendants
to answer the allegations. See Alston v. Parker,
363 F.3d 229, 233 n. 6 (3d Cir. 2004) (stating that at the pleading stage, a
plaintiff need only make out a claim upon which relief can be
granted, and that if more facts are necessary to resolve the
dispute, the parties may avail themselves of discovery
E. Plaintiff's Application for Pro Bono Counsel Will Be
Dismissed, Without Prejudice.
Appointment of counsel under 28 U.S.C. § 1915(e)(1) may be made
at any point in the litigation and may be made by the Court sua
sponte. See Tabron v. Grace, 6 F.3d 147, 156 (3d Cir. 1993),
cert. denied, 510 U.S. 1196 (1994). The plaintiff has no
right to counsel in a civil case. See id. at 153-54; Parham
v. Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997).
In evaluating a motion to appoint counsel, the court must first
examine the merits of the plaintiff's claim to determine if it
has "some arguable merit in fact and law." See Tunnell v.
Gardell, 2003 WL 1463394 at * 1 (D. Del. Mar. 14, 2003) (Slip
Copy) (citing Parham, 126 F.3d at 457) (other citations
omitted). If the court is satisfied that the claim is "factually
and legally meritorious," then the following factors must be
examined: (1) a plaintiff's ability to present his or her own
case; (2) the complexity of the legal issues; (3) the degree to
which factual investigation will be necessary and the ability of
a plaintiff to pursue such investigation; (4) the amount a case
is likely to turn on credibility determinations; (5) whether the case will require the testimony of expert witnesses; and (6)
whether a plaintiff can attain and afford counsel on his or her
own behalf. See id. (citing Parham, 126 F.3d at 457-58;
Tabron, 6 F.3d at 155-56, 157 n. 5).
However, a court should also consider other factors, such as
the lack of funding to pay appointed counsel, the limited supply
of competent lawyers willing to do pro bono work, and the
value of lawyers' time. See Tabron, 6 F.3d at 157-58.
In this case, Plaintiff's complaint was recently filed, and the
defendants have not yet been served. While it appears from the
face of the complaint that Plaintiff's claims could possibly have
merit, the factual and legal issues "have not been tested or
developed by the general course of litigation, making [a number
of factors] of Parham's test particularly difficult to
evaluate." Chatterjee v. Philadelphia Federation of Teachers,
2000 WL 1022979 at *1 (E.D. Pa. July 18, 2000) (stating that
unlike Parham, which concerned a directed verdict ruling, and
Tabron, which involved summary judgment adjudication,
plaintiff's claims asserted in complaint and motions "have barely
been articulated" and have distinctive procedural posture).
With regard to the Tabron/Parham factors, Plaintiff has not
demonstrated at this stage of proceedings the complexity of legal
issues, the degree to which factual investigation will be
necessary, or that he will be in need of expert witnesses. Likewise, in the case at issue, the Court finds that Plaintiff is
capable of presenting his claims at this early stage. He has
presented to this Court without the assistance of counsel not
only a Complaint, but also the instant motion for appointment of
counsel, and a motion to proceed in forma pauperis. The
Court recognizes that issues may arise in the course of this
litigation which may raise a question as to Plaintiff's need for
counsel. In that case, the Court will consider a renewed motion
for appointment of counsel. At this point in the litigation,
however, Plaintiff's motion for appointment of counsel will be
denied, without prejudice.
For the reasons set forth above, Plaintiff's false arrest,
false imprisonment, and illegal search and seizure claims will be
dismissed, without prejudice, pursuant to
28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1), for failure to state a claim.
Plaintiff's malicious prosecution claim will be permitted to
proceed. Plaintiff's motion for counsel will be denied, without
An appropriate Order accompanies this Opinion.
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