The opinion of the court was delivered by: Simandle, District Judge
This matter is before the Court upon motion of Plaintiff Santiago Pena-Ruiz, for reconsideration of this Court's Order of June 17, 2007, which had dismissed Plaintiff's Complaint as time-barred. Plaintiff now asserts that his claims under 42 U.S.C. § 1983 were subject to equitable tolling and that his Complaint was timely filed. This Court will reconsider its decision based upon this additional information, and finds as follows:
1. On May 20, 2007, Plaintiff SANTIAGO PENA-RUIZ (hereinafter "Plaintiff"), a prisoner currently confined at the Federal Correctional Institution at Florence, Colorado, executed his Complaint under 28 U.S.C. § 1331 (hereinafter "Complaint"), pursuant to the doctrine announced in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), together with Plaintiff's application to proceed in forma pauperis, pursuant to 28 U.S.C. § 1915. See Docket Entry No. 1.
2. Plaintiff named Kevin S. Solorzano as the sole defendant in this action. See id., Caption. Plaintiff alleges that Solorzano sexually assaulted him on two occasions, specifically, on September 27, 2004, and October 7, 2004. See id. at 2.
3. On June 17, 2007, this Court dismissed Plaintiff's Complaint with prejudice as time barred. See Docket Entry No. 2. The Court explained to Plaintiff that the statute of limitations on civil rights claims is governed by the applicable state limitations period for personal injury, see Goodman v. Lukens Steel Co., 482 U.S. 656, 661-62 (1987); Wilson v. Garcia, 471 U.S. 261, 276 (1985); Montgomery v. De Simone, 159 F.3d 120, 126 (3d Cir. 1998); Cito v. Bridgewater Township Police Dept., 892 F.2d 23, 25 (3d Cir. 1989), and that New Jersey's statute of limitations for personal injury claims 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." See id. at 1-2 (quoting Cito, 892 F.2d at 25, quoting, in turn, Brown v. Foley, 810 F.2d 55, 56 (3d Cir. 1987)). The Court further clarified to Plaintiff that, under federal law governing the accrual of 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." See id. at 2 (quoting Montgomery, 159 F.3d at 126, and citing Sameric Corp. of Delaware, Inc. v. City of Philadelphia, 142 F.3d 582, 599 (3d Cir. 1998)). Finally, the Court noted that "[e]quitable tolling functions to stop the statute of limitations from running where the claim's accrual date has already passed," see id. (quoting Oshiver v. Levin, 38 F.3d 1380, 1387 (3d Cir. 1994)), and that equitable tolling is appropriate where: (a) the defendant has actively misled the plaintiff, (b) the plaintiff has in some extraordinary way been prevented from asserting his rights, (c) the plaintiff has timely asserted his rights mistakenly in the wrong forum, or (d) the court has misled a party regarding the steps that the party needs to take to preserve a claim. See id. at 3 (citing Jones v. Morton, 195 F.3d 153, 159 (3d Cir. 1999), and Brinson v. Vaughn, 398 F.3d 225, 230 (3d Cir. 2005)). Pointing out that, according to Plaintiff's Complaint, Plaintiff was assaulted more than two years prior to his submission of the Complaint, this Court: (a) concluded that the Complaint was time barred in view of the fact that Plaintiff's statements did not provide this Court with any valid reason to grant Plaintiff equitable tolling, and (b) issued an order dismissing the Complaint (hereinafter "July Order"). See id. at 3-4.
4. On October 29, 2007, the Court received from Plaintiff his motion for reconsideration of the July Order (hereinafter "Motion") alleging that: (a) his Motion should be deemed timely on the grounds that Plaintiff was not notified about dismissal of his Complaint,*fn1 see Docket Entry No. 3, at 2,*fn2 and (b) his Complaint should be deemed timely on the grounds of equitable tolling, in view of the following facts:
(i) Defendant's criminal proceedings that took place between July of 2005 and November of 2006,
(ii) advice Plaintiff received from -- and concerns expressed by -- the prosecutors in Defendant's criminal action, and
(iii) Plaintiff's three transfers among certain correctional facilities operated by the Federal Bureau of Prisons.*fn3 See id. at 11-12.
5. On November 21, 2007, this Court issued an order directing the Clerk to reopen this instant matter in order to entertain Plaintiff's Motion. See Docket Entry No. 4.
6. After thoroughly examining Plaintiff's Motion, the Court concludes that grant of equitable tolling is not warranted.
(a) Procedurally, Local Rule 7.1(i) requires that a motion for reconsideration be "served and filed within 10 business days after the entry of the order or judgment on the original motion by the Judge or Magistrate Judge." L. Civ. R. 7.1(i). In the instant case, the Court entered judgment in this matter on June 17, 2007, and Plaintiff did not file the present Motion until October 29, 2007, three and a half months later. Plaintiff offers, as an explanation regarding why he failed to file his motion in a timely fashion, or make any request for an extension of time to file such a motion beyond the ten day window prescribed by the Local Rules, his claim that he did not receive the Clerk's mailing of the Court's June 17 Order addressed to him, even though he did receive all other mailings from the Clerk sent to Plaintiff at the very same address. See Docket Entry No. 3, at 2-3. The Court has no reason to presume that the post office failed to deliver the Clerk's mailing containing a copy of the Court's June 17 Order while properly delivering all other mailings from the Clerk sent to the same address. It cannot be ruled out, however, that the mail was lost or misplaced by others after it arrived at FCI Florence, and the Court will deem the motion timely.*fn4
(b) Turning then to the reconsideration motion, the Court finds Plaintiff has failed to sustain the burden imposed upon him by the standard governing motions for reconsideration. The "purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly discovered evidence." Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). Accordingly, a motion under Rule 7.1(i) may be granted only if: (1) an intervening change in the controlling law has occurred; (2) evidence not previously available has become available; or (3) it is necessary to correct a clear error of law or prevent manifest injustice. See North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir 1995). Here, Plaintiff does not allege any change in controlling legal authority, nor does he argue that any previously unavailable evidence has come to light, or that the Court committed a clear error of law. Instead, Plaintiff's arguments provide information previously available to Plaintiff but undisclosed to the Court. Normally, this would lead to a finding that Plaintiff failed to meet the requirements for reconsideration. See Harsco Corp., 779 F.2d at 909. Nonetheless, plaintiff is proceeding pro se, his pleadings are to be read with liberality, and he may not have foreseen when drafting his Complaint that it would be subject to dismissal on its face for untimeliness. Accordingly, he should receive this opportunity to present the factual circumstances surrounding his delay in filing that give rise to equitable tolling. The Court therefore reconsiders its earlier ruling based upon the more complete allegations of Plaintiff.
(c) Examining Plaintiff's equitable tolling arguments on merits, as if they were made part of Plaintiff's Complaint ab initio, the Court will dismiss the Complaint as untimely for failure to assert valid grounds for equitable tolling. According to the Complaint, Plaintiff suffered a sexual assault by Defendant on two occasions, specifically, on September 27, 2004, and on October 7, 2004, when Defendant allegedly forced Plaintiff to have a sexual intercourse with him. See Docket Entry No. 1, at 2. Therefore, the Court has no reason to presume that Plaintiff was not aware of the alleged wrong committed, and Plaintiff's two-year period of limitations began to run, for the purposes of filing a civil rights action, no later than on October 7, 2004, and, absent equitable tolling, expired on October 6, 2006, that is, six and a half months prior to Plaintiff's execution of his Complaint. See Complaint at 5 (indicating that the Complaint was executed, at the earliest, on May 20, 2007). Moreover, according to the Complaint, Defendant was arrested and removed from the facility of Plaintiff's ...