United States District Court, D. New Jersey
L. WOLFSON UNITED STATES DISTRICT JUDGE.
Ivan 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,
as well as state tort claims. (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. 2 & 3.) The Court
subsequently denied a second application to proceed in
forma pauperis, as it was also incomplete. (ECF Nos.
6-8.) McKinney thereafter submitted a third in forma
pauperis application, which was granted, and the action
was reopened. (ECF Nos. 9 & 10.) Also before the Court is
a motion by McKinney for appointment of pro bono
counsel. (ECF No. 12.)
SCREENING THE COMPLAINT
Court must now review the complaint under 28 U.S.C. §
1915(e) and 28 U.S.C. § 1915A 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 entirely
from his transportation by van between corrections facilities
on November 10, 2015. (See ECF No. 1.) McKinney
alleges that corrections officers subjected him, as well as
other prisoners in the van, to a lack of ventilation, denied
his requests to use the restroom despite having been in the
van for hours, and gave him a “rough ride, ” by
erratically maneuvering the van while did not have a
seatbelt. (See Id. at ECF pp. 6-15.) McKinney
alleges that the corrections officers directly involved, as
well as Gary Lanigan, then the commissioner of the New Jersey
Department of Corrections, and a John Doe supervisory
defendant, should be held liable in their individual and
official capacities. (Id. at ECF pp. 2-17.)
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).
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 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)).
§ 1983 and tort claims appear to be untimely from the
face of the Complaint. He alleges that all underlying acts
and harm occurred on November 10, 2015, when he was
transported between facilities by van. (See ECF No.
1.) Thus, the two-year limitations period for his claims
ended as of November 10, 2017. The Complaint was received by
the Clerk's Office over five months after that, on April
23, 2018, though it included a cover letter dated April 17,
2018. (See ECF No. 1 at 1.) 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, April
17, 2018. Nonetheless, the Complaint is still facially
cover letter, however, McKinney asserts that he originally
sent his Complaint on March 19, 2017. (See ECF No. 1
at 1.) That letter reads, “I am resubmitting this
complaint because I never heard back from the Court. I
initially filed this complaint 03-19-17 by Postage Remit.
I have had a lot of problems with legal mail here and may
have gotten lost [sic].” (Id.)
claim that he originally mailed his Complaint on March 19,
2017, but that it was never docketed and may have been lost,
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. Conroy, 680 Fed.Appx. 140 (3d Cir. 2017);
Coudriet v. Vardaro, 545 Fed.Appx. 99, 102 n.2 (3d
Cir. 2013); Paluch v. Sec'y Pa. Dep't of
Corr., 442 Fed.Appx. 690, 693 (3d Cir. 2011);
Terrell v. Benfer, 429 Fed.Appx. 74, 75 n.1 (3d Cir.
2011); Spencer v. Beard, 351 Fed.Appx. 589, 590 (3d
assertions here are very different from those considered in a
typical prison mailbox case. This is not a situation where a
prisoner placed a document in the mail shortly before a
deadline and the court received that document a few days
after that deadline. Instead, McKinney claims that he
originally mailed his complaint in March 2017, but that it
was never docketed and that, after more than a year
had elapsed, he mailed another copy of the complaint. It
appears unlikely that the Houston Court intended the
prison mailbox rule to apply in such a distinct context, but
there is support in some courts for the theory that a
document may be treated as filed on the date it was delivered
to prison authorities even if it is never docketed by the
Court. See Ray v. Clements, 700 F.3d 993, 1002-13
(7th Cir. 2012); Stoot v. Cain, 570 F.3d 669 (5th
Cir. 2009); Allen v. Culliver, 471 F.3d 1196 (11th
Cir. 2006); Huizar v. Carey, 273 F.3d 1220 (9th Cir.
2001); see also Nichols v. Coleman, Civ. A. No.
08-cv-2445, 2010 WL 1053094, at *3 (E.D. Pa. Mar. 17, 2010).
Each of these cases applied the prison mailbox rule to
potentially toll the AEDPA limitations period when a prisoner
claimed to have commenced a state PCR proceeding, but the
state court had never received the pleading. See
Ray, 700 F.3d at 1002-13; Stoot, 570 F.3d at
669-72; Allen, 471 F.3d at 1197-99; Huizar,
273 F.3d at 1222-24; Nichols, 2010 WL 1053094 at *3.
the benefit of the prison mailbox rule, there remains some
possibility that McKinney's complaint could also be
deemed timely by the application of the doctrine of equitable