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Abdus Salaam Malik v. Lewis Hannah

February 2, 2012


One Centennial Square Haddonfield, NJ 08033 Attorney for Defendant City of Camden SIMANDLE, Chief Judge:

The opinion of the court was delivered by: Hon. Jerome B. Simandle



This matter is before the Court on Defendant City of Camden's motion for relief from order and judgment pursuant to Rules 60(a) and 59(e), Fed. R. Civ. P. [Docket Item 145.] Defendant requests that, pursuant to Rule 60(a), the Court "correct" Magistrate Judge Schneider's September 25, 2007 Opinion and Order which granted Plaintiff leave to file his Second Amended Complaint, joining Defendant City of Camden. [Docket Item 40.] Additionally, Defendant moves for reconsideration of the Court's entry of summary judgment against it on June 28, 2011, pursuant to Rule 59(e). [Docket Items 132 & 133.] Defendant, represented by new counsel,*fn1 essentially requests that the Court now decide, after years of protracted litigation and numerous neglected opportunities for Defendant to raise a statute-of-limitations defense, and after Plaintiff has prevailed on summary judgment as to Defendant's liability, that Plaintiff should never have been granted leave to amend his Complaint to join Defendant City of Camden because Plaintiff's claim was, allegedly, untimely. For the reasons discussed herein, the Court will deny Defendant's motion.


The facts and procedural history of this protracted action have been recounted by the Court in numerous previous Opinions. See, e.g., Opinions of February 22, 2006 [Docket Item 12], January 3, 2007 [Docket Item 26], March 2, 2007 [Docket Item 29], September 25, 2007 (Magistrate Judge Schneider) [Docket Item 40], March 31, 2008 [Docket Item 57], September 24, 2009 [Docket Item 88], December 30, 2009 [Docket Item 104], and June 28, 2011 [Docket Item 132]. However, as the issues at stake herein involve the sequence of motions and opinions issued in this action, a brief review of the procedural history is again required.

On March 28, 2003, Camden police officers entered Plaintiff's house and, the Court has since determined, subsequently violated Plaintiff's Fourth Amendment right to be free of unreasonable search and seizure, causing him physical injury and property damage. Malik v. Hannah, 799 F. Supp. 2d 355, 356-57 (D.N.J. June 28, 2011). A few weeks later, in April of 2003, Plaintiff retained the services of Attorney Lewis Hannah to represent him in a civil rights action against the individual police officers who assaulted him as well as the responsible government entity. Malik v. Hannah, 661 F. Supp. 2d 485, 487 (D.N.J. Sep. 24, 2009). Plaintiff reasonably believed that Hannah would file or had already filed such action, at least until March of 2005, when Plaintiff learned via a letter from Hannah that Hannah would not do so. Id. at 488. It was then not until June of 2005 that Plaintiff recovered the paperwork associated with his claim from Hannah. Id.

On July 26, 2005, Plaintiff filed his initial Complaint, pro se, and applied to file in forma pauperis without prepaying the filing fee, pursuant to 28 U.S.C. § 1915. [Docket Item 1.]*fn2 The initial Complaint named as Defendant only Lewis Hannah, though the Court subsequently received, dated on the same day of July 26, 2005, Plaintiff's Amended Complaint seeking damages for constitutional violations from the Camden County Police Department and the Camden County Prosecutor's Office. [Docket Item 5.]

On February 22, 2006, the Court dismissed sua sponte Plaintiff's claims against the Camden County institutional defendants as time-barred, pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A. Feb. 22, 2006 Opinion, 2006 WL 436782 at *4. On Plaintiff's motion for reconsideration, the Court subsequently reconsidered this determination, and on January 3, 2007, the Court determined that Plaintiff's claims might be subject to equitable tolling.

Plaintiff alleges that his lawyer assured him, between April 2003 and March 2005, that the Complaint would be and then that it was timely filed. If Plaintiff's claim was tolled during this approximately 21-month time-period, Plaintiff's claim, filed against the government Defendants in November of 2005, would not be barred by the two-year statute of limitations.

Jan. 3, 2007 Opinion, 2007 WL 38755 at *4. However, the Court nonetheless sua sponte dismissed Plaintiff's claims against the Camden County defendants, this time for failure to state a claim because Plaintiff's claims against the County Defendants were all premised on a theory of respondeat superior, which is unavailable under 42 U.S.C. § 1983. Id. at *5.

Plaintiff again moved for reconsideration, seeking to add a claim of a policy or custom of the Camden County Defendant, and to add as defendants the unidentified police officers that conducted the assault. The Court denied Plaintiff's request, finding that Plaintiff's argument regarding a policy of the County Defendants failed to meet the standard for reconsideration under L. Civ. R. 7.1(i); and finding that Plaintiff's request to add individual defendants, construed as a motion to amend the complaint under Fed. R. Civ. P. 15(c) was improper because (1) it failed to include a proposed amended complaint, (2) it did not name the individual officers to be joined, (3) the proposed amended complaint did not relate back to the original complaint, and (4) the claims appeared to be time barred. Mar. 2, 2007 Opinion, 2007 WL 708981 at *3-4.

The Opinion included a rough calculation estimating the number of months that might be considered tolled against such individual defendants, and determined that it would be appropriate to toll ten months on claims against individual defendants. Id. at *4 n.3. The Court did not reconcile the difference between this calculation and the prior January 3 determination that 21 months could be tolled in Plaintiff's claims against the Camden County defendants. However, the Court's Order denying reconsideration was without prejudice to Plaintiff seeking "to properly amend the Complaint with any timely claims he may have." Mar. 2, 2007 Order [Docket Item 30].

Plaintiff then moved for leave to file an amended complaint, for the first time adding as defendant the City of Camden and the unnamed individual officers. This motion was referred to Magistrate Judge Schneider, as a non-dispositive motion pursuant to L. Civ. R. 72.1a(1). On September 25, 2007, Judge Schneider granted in part and denied in part the motion. [Docket Item 40.] Judge Schneider denied Plaintiff's motion to add the unidentified individual defendants, relying on the Court's March 2, 2007 reasoning and on the law-of-the-case doctrine, concluding that, as to Plaintiff, the issue had already been decided in the March 2, 2007 Opinion. Sep. 25, 2007 Opinion at 8-9.

However, Judge Schneider determined that leave should be given to Plaintiff to add Defendant City of Camden, as his claims against that entity were not clearly time barred, based on the Court's reasoning in its January 3 and March 2, 2007 Opinions, and on Plaintiff's allegations in his proposed amended complaint. Id. at 6-7 ("Accordingly, therefore, the statute of limitations was tolled on Plaintiff's claims against the City from April 2003 through June 2005. By tolling the statute of limitations for twenty-five months from April 2003 through June 2005, the statute of limitations did not run on Plaintiff's claims against the City of Camden until June 2007."). Accordingly, Judge Schneider granted Plaintiff leave to file an Amended Complaint joining Defendant City of Camden.*fn3

Defendant City of Camden was finally served on April 18, 2008. [Docket Item 61.] Meanwhile, the Court granted Plaintiff's unopposed summary judgment motion against Defendant Hannah as to liability for professional malpractice, but denied summary judgment on the issue of damages, which the Court determined was not ...

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