United States District Court, D. New Jersey
IVAN G. McKINNEY, Plaintiff,
SGT FITZGERALD et al., Defendants.
L. WOLFSON UNITED STATES DISTRICT JUDGE.
Ivan G. McKinney (“McKinney” or
“Plaintiff”), is a state prisoner incarcerated at
New Jersey State Prison, in Trenton, New Jersey. He is
proceeding pro se with this Complaint asserting
violations of his civil rights under 42 U.S.C. § 1983.
(See Compl., ECF No. 1.) The Court initially
administratively terminated this action, as McKinney's
application to proceed in forma pauperis was
incomplete. (ECF Nos. 3 & 4.) McKinney thereafter
submitted a proper in forma pauperis application,
which was granted, and the action was reopened. (ECF Nos. 5
& 6.) Also before the Court is a motion by McKinney for
appointment of pro bono counsel. (ECF No. 8.)
SCREENING THE COMPLAINT
Court must now review the Complaint under 28 U.S.C. §
1915(e), 28 U.S.C. § 1915A, and 42 U.S.C. § 1997e
to determine whether it should be dismissed as frivolous or
malicious, for failure to state a claim upon which relief may
be granted, or because it seeks monetary relief from a
defendant who is immune from suit. McKinney's claims in
this action arise from alleged interactions with corrections
officers on March 28, 2015, July 13, 2015, April 3, 2016, and
April 5, 2016. (See ECF No. 1.) McKinney alleges
that a corrections officer touched him inappropriately during
a pat-down search on March 28, 2015 and that, when McKinney
complained, other officers subjected him to a retaliatory
strip search. (See Id. at ECF pp. 4-5, 6-9.) He
alleges that an officer pulled his pants down in the law
library on July 13, 2015. (Id. at ECF pp. 9-11.)
McKinney further contends that another officer
inappropriately touched him during a pat-down search on April
3, 2016. (Id. at ECF pp. 11-12.) He claims that,
after he filed a grievance regarding the last incident,
several officers retaliated against him on April 5, 2016, by
yelling at him and threatening him. (Id. at ECF pp.
the Prison Litigation Reform Act, Pub. L. 104-134,
§§ 801-810, 110 Stat. 1321-66 to 1321-77 (Apr. 26,
1996) (“PLRA”), district courts must review
prisoner complaints when the prisoner (1) is proceeding
in forma pauperis, see 28 U.S.C. §
1915(e)(2)(B), (2) seeks redress against a governmental
employee or entity, see 28 U.S.C. § 1915A, or
(3) asserts a claim concerning prison conditions,
see 42 U.S.C. § 1997e(c). The PLRA directs
district courts to sua sponte dismiss claims that
are frivolous or malicious, that fail to state a claim upon
which relief may be granted, or that seek monetary relief
from a defendant who is immune from such relief. See
28 U.S.C. §§ 1915(e)(2)(B), 1915A(b); 42 U.S.C.
legal standard for dismissing a complaint for failure to
state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)
is the same as that for dismissing a complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6).” Schreane
v. Seana, 506 Fed.Appx. 120, 122 (3d Cir. 2012); see
also Mitchell v. Beard, 492 Fed.Appx. 230, 232 (3d Cir.
2012) (discussing 42 U.S.C. § 1997e(c)(1)); Courteau
v. United States, 287 Fed.Appx. 159, 162 (3d Cir. 2008)
(discussing 28 U.S.C. § 1915A(b)). That standard is set
forth in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
To survive the Court's screening for failure to state a
claim, the complaint must allege “sufficient factual
matter to show that the claim is facially plausible.”
Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.
2009) (internal quotation marks omitted). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678; see also Fair Wind
Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n.3 (3d
Cir. 2014). “A pleading that offers ‘labels and
conclusions' or ‘a formulaic recitation of the
elements of a cause of action will not do.'”
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 555).
se pleadings, as always, will be liberally construed.
See Haines v. Kerner, 404 U.S. 519, 520 (1972);
Glunk v. Noone, 689 Fed.Appx. 137, 139 (3d Cir.
2017). Nevertheless, “pro se litigants still must
allege sufficient facts in their complaints to support a
claim.” Mala v. Crown Bay Marina, Inc., 704
F.3d 239, 245 (3d Cir. 2013).
the Court first assesses the timeliness of McKinney's
Complaint. Causes of action under 42 U.S.C. § 1983 are
subject to the same two-year statute of limitations as claims
for other personal injuries under New Jersey state law.
See Patyrak v. Apgar, 511 Fed.Appx. 193, 195 (3d
Cir. 2013) (citing Dique v. N.J. State Police, 603
F.3d 181, 185 (3d Cir. 2010)); Evans v. Gloucester
Twp., 124 F.Supp.3d 340, 349 (D.N.J. 2015) (citing
Pittman v. Metuchen Police Dep't, 441 Fed.Appx.
826, 828 (3d Cir. 2011)).
claims appear to be untimely from the face of the Complaint.
He alleges that the underlying acts and harm occurred on
March 28, 2015, July 13, 2015, April 3, 2016, and April 5,
2016. (See ECF No. 1.) Thus, the two-year
limitations periods for his claims ended, respectively, on
March 28, 2017, July 13, 2017, April 3, 2018, and April 5,
2018. The Complaint was received by the Clerk's Office on
August 17, 2018, over four months after the expiration of the
latest limitations period, though I note that it included a
cover letter dated August 13, 2018. (See ECF No.
1-3.) The Court will give McKinney the benefit of the doubt,
as appropriate for a pro se litigant, and assume,
under the “mailbox rule, ” see Houston v.
Lack, 487 U.S. 266, 270-71 (1988), that he may have
given it to prison staff for filing as early as its indicated
date, August 13, 2018. Nonetheless, the Complaint is still
cover letter, however, McKinney asserts that he originally
sent his Complaint on May 12, 2016. (See ECF No.
1-3.) That letter reads,
I filed this case on 05-12-16 in good faith! I filed this at
New Jersey State Prison on unit 4-C in good faith. As-per the
prisoner's mailbox rule in Houston v. Lack and
other cases, The U.S. Supreme Court said that my mail is
filed when I hand it to the officer. I am refiling this
action today 08-13-18 in good Faith certified mail. I have
enclosed my 05-12-16 Receipt in which I originally filed.
(Id.) McKinney included a copy of an NJSP Postage
Remit form which indicates a date of May 12, 2016 for legal
mail sent to this district's Newark courthouse. (ECF No.
claim that he originally mailed his Complaint on May 12,
2016, but that it was never docketed, implicates two distinct
legal doctrines: the prison mailbox rule and the doctrine of
equitable tolling. In Houston v. Lack, 487 U.S. 266,
the Supreme Court created the prison mailbox rule, designed
for pro se prisoners, whereby a court filing will be
deemed filed not when stamped received by the Clerk's
office, but instead “at the time [the prisoner]
delivered it to the prison authorities for forwarding to the
court clerk.” Id. at 275-76. In creating this
rule, the Supreme Court noted that the pro se
prisoner has no choice but to rely on the prison mail system
in order to file documents with the Court; such a litigant
has no ability to deliver the document in person or to
quickly confirm with the Clerk's Office that the document
has been timely received. See Id. The rule is
typically employed in cases where the pro se
prisoner placed a document in the prison mail system a few
days before the relevant deadline and the document was not
received by the Court until a few days after the deadline.
See, e.g., Houston, 487 U.S. at 268-69;
Moody v. ...