United States District Court, D. New Jersey
L. LINARES CHIEF JUDGE UNITED STATES DISTRICT COURT.
before this Court is the motion of Defendant Shakir seeking
the dismissal of Plaintiffs most recent Amended Complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF
No. 52). Plaintiff did not file a response to the motion. For
the following reasons, the motion will be GRANTED and
Plaintiffs claims against Shakir will be DISMISSED WITH
PREJUDICE as time barred.
Alphonso Brown, Jr., who is also known as Tyrone Fitzgerald,
was a state prisoner incarcerated at the Central Reception
and Assignment Facility ("CRAF") in Trenton, New
Jersey, in August 2012. (ECF No. 27 at 5-6). Following an
incident which occurred before Petitioner was placed into
CRAF in late July 2012, Plaintiff suffered numerous injuries
which led to his seeking medical attention while in prison.
(Id.). That treatment included several consultations
with Dr. Ahmar Shakir, an orthopedic surgeon. (Id.
first saw Dr. Shakir in September 2012, at which point Dr.
Shakir injected one of Plaintiffs hands with a
corticosteroid. (Id. at 17-18). According to the
Complaint, although Shakir treated one of Plaintiff s hands
at that time, Plaintiffs remaining injuries went untreated as
Shakir told Plaintiff he would deal with them "one by
one over a period of time." (Id. at 18). Shakir
did, however, order a set of splints for Plaintiffs hands,
but Plaintiff never received them as he later learned that
the splints ordered by Shakir were not approved by the prison
for safety reasons. (Id.). Plaintiffs hands, which
had been fractured, thereafter healed in a deformed manner.
(Id. at 19). Plaintiff further alleges that his
injuries later led to his suffering a stroke, but it is
unclear if Dr. Shakir treated Plaintiff as to any of the
issues which caused this stroke. (Id. at 18).
to Plaintiffs current Complaint and the documents he attached
thereto, Plaintiff was seen by Dr. Shakir again on February
14, 2013, at which point he received two more corticosteroid
injections - one in each hand - which apparently turned his
hands "white like leprosy." (Id. at 18,
24). Plaintiff does not allege that he was seen by Dr. Shakir
after February 2013, instead he states that the only
treatments he received from Shakir were the three total
injections into his hands during these two visits and the
ordering of a splint he never received. (Id. at 19).
Plaintiffs claims against Dr. Shakir thus concern events
which occurred, at the latest, on February 14, 2013.
(Id. at 17-19, 24).
Court summarized the procedural history of this matter as
follows in deciding a previous motion to dismiss:
On or about June 19, 2014, Plaintiff filed his initial
complaint in this matter, which contained a nascent version
of this claim against Lamb, albeit in a vague and conclusory
form. (See ECF Nos. 1-2). Following screening of
Plaintiffs complaint, this Court permitted to proceed only on
his claims against another Defendant, Dr. Shakir.
(See ECF No. 12). All of Plaintiff s other claims
were dismissed following screening, including the claim
against Lamb. (Id.). Although provided with the
opportunity to serve his complaint through the U.S.
Marshal's Office, Plaintiff failed to serve the remaining
Defendants in a timely fashion, and this Court entered a call
for dismissal for failure to serve the complaint pursuant to
Rule 4(m) on September 15, 2015. (ECF No. 17). Because
Plaintiff failed to respond within the time set by the call
for dismissal,  his complaint was dismissed without
prejudice in its entirety on October 27, 2015. (ECF No. 19).
On or about April 8, 2016, Plaintiff filed with the Court a
certification in which he requested that his dismissed
complaint be reopened and that he be permitted to proceed
against Defendants Shakir and Lamb. (ECF No. 21). On April
19, 2016, this Court entered an order which informed
Plaintiff that his complaint had been dismissed without
prejudice in October 2015, and that if he wished to pursue
claims against Defendants, he could only do so by filing a
new complaint against them. (ECF No. 22). Although the Court
permitted Plaintiff to file a new complaint by June 2, 2016,
the Court noted that it had previously dismissed Plaintiffs
claims against Lamb and Shakir without prejudice in a
non-conditional fashion, and that, as such, the filing of the
original complaint did not arrest the running of the statute
of limitations applicable to Plaintiffs claims and that
Plaintiffs claims may be time barred should he file a new
complaint. (Id. at 3 n. 3). Plaintiff thereafter
filed his current complaint against Lamb and Shakir on or
about June 1, 2016. (ECF No. 27).
No. 49 at 2-3).
deciding a motion to dismiss pursuant to Fed.R.Civ.P.
12(b)(6), a district court is "required to accept as
true all factual allegations in the complaint and draw all
inferences in the facts alleged in the light most favorable
to the [Plaintiff]." Phillips v. Cnty. of
Allegheny, 515 F.3d 224, 228 (3d Cir. 2008). "[A]
complaint attacked by a... motion to dismiss does not need
detailed factual allegations." Bell Atlantic v.
Twombly, 550 U.S. 544, 555 (2007). However, the
Plaintiffs "obligation to provide the 'grounds'
of his 'entitle[ment] to relief requires more than labels
and conclusions, and a formulaic recitation of the elements
of a cause of action will not do." Id. (citing
Papasan v. Allain, 478 U.S. 265, 286 (1986)). A
court is "not bound to accept as true a legal conclusion
couched as a factual allegation." Papasan, 478
U.S. at 286. Instead, assuming the factual allegations in the
complaint are true, those "[f]actual allegations must be
enough to raise a right to relief above the speculative
level." Twombly, 550 U.S. at 555.
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to 'state a
claim for relief that is plausible on its face."'
Ashcroft v. Iqbal,556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 570). "A claim has facial
plausibility when the pleaded factual content allows the
court to draw the reasonable inference that the defendant is
liable for misconduct alleged." Id.
"Determining whether the allegations in a complaint are
plausible is a context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense." Id. at 679. "[W]here the
well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has
alleged-but it has not 'show[n]'--'that the
pleader is entitled to relief.'" Id.
(citing Fed.R.Civ.P. 8(a)(2)). Moreover, while pro
se pleadings are liberally construed, ...