United States District Court, D. New Jersey
L. HILLMAN, U.S.D.J.
matter comes before the Court upon a civil rights complaint
filed by Plaintiff Carlos Vallejo (“Plaintiff”).
Plaintiff filed the initial Complaint in this matter on
September 8, 2013, alleging claims pursuant to Bivens v.
Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971),
and the Federal Tort Claims Act, 28 U.S.C. §§
1346(b), 2401, 2671, et seq., based on the Drug Enforcement
Administration's seizure of Plaintiff's property
during his arrest on January 25, 2007.
Pursuant to 28 U.S.C. §§ 1915, 1915A, the Court
conducted its sua sponte screening of the Complaint and
dismissed all claims as time barred. (ECF Nos. 6, 7.) The
dismissal was without prejudice and the Court allowed
Plaintiff to file an amended complaint within 30 days if he
could establish grounds for tolling. (Id.)
year and a half later, Plaintiff filed the instant motion
seeking permission to file an amended
complaint. (Mot., ECF No. 8.)
his proposed Amended Complaint, Plaintiff raises only a
Bivens claim and addresses the issue of equitable
tolling, albeit using the standard for tolling of the one
year statute of limitations period for habeas petitions set
forth by the Antiterrorism and Effective Death Penalty Act of
1996. (Id. at 11-13.)
applicable in this case,
[e]quitable tolling…is “a rare remedy to be
applied in unusual circumstances.” Wallace v.
Kato, 549 U.S. 384, 396 (2007). “It is only
appropriate ‘(1) where the defendant has actively
misled the plaintiff respecting the plaintiff's cause of
action; (2) where the plaintiff in some extraordinary way has
been prevented from asserting his or her rights; or (3) where
the plaintiff has timely asserted his or her rights
mistakenly in the wrong forum.'” Omar v.
Blackman, 590 F. App'x 162, 166 (3d Cir. 2014)
(quoting Santos ex rel Beato v. United States, 559
F.3d 189, 197 (3d Cir. 2009)). “To obtain the benefit
of equitable tolling, a party also must show that ‘she
exercised due diligence in pursuing and preserving her
claim.'” Id. (quoting Santos, 559
F.3d at 197).
Ricketts v. Weehawken Police Dep't, No. 16-4846,
2017 WL 66385, at *3 (D.N.J. Jan. 6, 2017).
regard to tolling, Plaintiff argues that he
has been routinely up on the developments of his property
return. For starters, he filed a letter back during his
criminal case to the judge, indicating that his counsel was
failing to perform his duties in a required manner. Moreover,
after his counsel misled him and failed to file the return of
property motion, and having received no information,
plaintiff filed his own pro se complaint for its return,
doing the best that he could without any law knowledge at
all. Meanwhile throughout all of this, plaintiff was also
working upon a 2255 Habeas petition, of which this court has
perused over and an evidentiary hearing is pending for this
habeas. Thus, plaintiff has been juggling many issues at the
same time. It just so happens that the legal counsel
malfeasance discussed herein, is similar to  that of the
this juncture, the Court finds that Plaintiff has not alleged
facts sufficient to justify equitable tolling. Though he
states that counsel misled him and failed to file the motion
as requested, he provides no specific information. It is
unclear when counsel informed him he filed the motion; when
and how Plaintiff followed up with counsel about the motion;
when he learned that counsel had not filed the motion, etc.
With such limited information, the Court is unable to