The opinion of the court was delivered by: Simandle, District Judge
This matter is before the Court upon Defendant James Cowab's motion to dismiss Plaintiff's complaint as untimely [Docket Item 135]. THIS COURT FINDS AS FOLLOWS:
1. On December 19, 2006, Plaintiff filed his complaint asserting that Defendant James Cowab, and others, used excessive force when arresting Plaintiff on February 9, 2004 in violation of the Fourth Amendment [Docket Item 1]. The sole remaining claim is Plaintiff's Bivens action against Defendant Cowab [Docket Items 2 & 46].*fn1 See Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Defendant Cowab has moved to dismiss, arguing that it is evident from the face of the complaint that Plaintiff's claims are barred by the applicable statute of limitations. Plaintiff responds that he did not learn that Defendant Cowab was one of his alleged attackers until November 15, 2005, and therefore the statute of limitations should be tolled. For the reasons set forth below, the Court will grant Defendant's motion to dismiss.
2. In its review of Defendants' motion to dismiss pursuant to Rule 12(b)(6), Fed. R. Civ. P., the Court must "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). Thus, "to survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, ---U.S. ---, 129 S. Ct. 1937, 1949 (2009); Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).
3. A complaint may be dismissed under Rule 12(b)(6) on statute of limitation grounds, 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). The statute of limitations for a Bivens claim, as for claims arising under 42 U.S.C. § 1983, is borrowed from the forum state's personal injury statute. See Kost v. Kozakiewicz, 1 F.3d 176, 190 (3d Cir. 1993); King v. One Unknown Fed. Corr. Officer, 201 F.3d 910, 913 (7th Cir. 2000) (same statute of limitations applies to actions under Bivens and § 1983). In New Jersey, the statute of limitations for personal injury claims is two years from when the cause of action accrues. N.J. Stat. Ann. 2A:14-2. A civil rights cause of action accrues "when the plaintiff knew or should have known of the injury upon which its action is based." Sameric Corp. v. City of Philadelphia, 142 F.3d 582, 599 (3d Cir. 1998).
4. It is undisputed that Plaintiff's cause of action accrued on February 9, 2004, that date Plaintiff was injured during arrest, see Sameric Corp., 142 F.3d at 599 and Freeman v. State, 788 A.2d 867, 874 (N.J. Super. Ct. App. Div. 2002) ("Actions grounded on violation of § 1983 based upon police action toward criminal suspects, such as search and seizure, arrest and interrogation, are presumed to have accrued when the action actually occurs"), and thus the statutory period ended on February 9, 2006, approximately ten months before Plaintiff submitted his present complaint. Nevertheless, Plaintiff asserts in both his complaint and in opposition to Defendant's motion to dismiss, that he is entitled to equitable tolling because he could not identify Cowab until November 15, 2005.*fn2 (Pl. Opp'n at 6.) Under the discovery rule, according to Plaintiff, the statute of limitations should not begin to run until Plaintiff discovered Cowab's identity.
5. Though it is true that New Jersey courts and the law of this circuit permit equitable tolling in certain extraordinary circumstances, Freeman, 788 A.2d at 879-80 and Lake v. Arnold, 232 F.3d 360, 370 n.9 (3d Cir. 2000), equitable tolling is not justified here. Plaintiff's inability to identify Defendant Cowab does not justify equitable tolling, because Plaintiff could have brought this action naming a fictitious defendant, and later added a name. Rolax v. Whitman, 175 F. Supp. 2d 720, 727 (D.N.J. 2001), affirmed by 53 F. App'x 635, 638 (3d Cir. 2002); Cruz v. City of Camden, 898 F. Supp. 1100, 1113-15 (D.N.J. 1995) (citing Savage v. Old Bridge-Sayreville Medical Group, 633 A.2d 514 (N.J. 1993)). Moreover, Plaintiff did learn Cowab's identity several months before the statute of limitations expired and yet he filed the present complaint more than one year after acquiring this information. Plaintiff does not offer any explanation for this delay, nor could he allege that Defendant Cowab somehow prevented him from timely learning Cowab's identity. Under these circumstances, the Court sees no reason to exercise its equitable power to toll the statute of limitations for the ten months that Plaintiff knew both of his injury and the identity of his alleged assailant.*fn3 "The discovery rule does not operate here to shift the accrual of [Plaintiff]'s claims, nor should the period be equitably tolled, because [Plaintiff] failed to diligently pursue his claims." See Rolax, 53 F. App'x at 638. In general, the purpose of the two-year statute is to give an injury party up to two years to investigate the cause of his injury, to learn the identity of the allegedly responsible defendants, and to file suit. This purpose was served in this case because Plaintiff learned the agent's identity within the two years after Plaintiff's cause of action accrued, yet he failed to bring his claim in a timely fashion.
6. The Court will consequently grant Defendant Cowab's motion to dismiss. The accompanying ...